President Trump is considering stretching his presidential powers even further by declaring a national emergency to build his border wall.
But he just undermined his case that it’s actually an emergency.
Speaking to reporters in the Oval Office on Wednesday, Trump said that he has the “absolute right” to declare an emergency. Then he was asked what would make him actually take such an action. “My threshold will be if I can’t make a deal with people that are unreasonable” on the current government shutdown, he said. He added at another point of the current negotiations: “Otherwise we’ll go about it in a different manner,” but “I don’t think we’ll have to do that.”
Importantly, this is the first time Trump has explicitly said the national emergency declaration is his backup plan. It has been clear that a it was a conveniently timed alternative that could be invoked in the absence of a deal to fund the wall and end the shutdown. But the White House could have argued that it was still deliberating about the legality of such a move — or even that it was still considering whether it was appropriate. Here is the president admitting such a declaration is basically a strategic option.
Which doesn’t exactly bolster the idea that there is a true emergency on the southern border. To be clear, that’s a proposition that was dubious to begin with — given that illegal immigration is way down from its peak in the early 2000s and that Trump and his administration have repeatedly misstated basic facts to support its case. But Trump has now admitted that his decision doesn’t rely upon whether it’s actually an emergency, but whether such a declaration is needed politically and legally to build the wall.
The Trump team would likely argue that it’s an emergency regardless, and that a declaration may simply not be needed if Congress deals with the situation itself. Yet there are a couple logical holes in that argument. The first is that, if it’s truly an emergency now, time is of the essence, and it would undoubtedly be better just to declare the emergency so it can be dealt with posthaste. The second is that the shutdown hinges on just more than $5 billion of border-wall funding, which is only enough to build a fraction of the wall. If there is truly an emergency, isn’t the entire wall needed now?
Those, of course, are questions about the logic behind Trump’s thought process. What’s more pertinent here is the legal questions — especially given the emergency declaration would definitely be challenged.
But whether it’s genuinely an emergency is also important there, as my colleague Fred Barbash reported Tuesday:
In 1976, Congress enacted the National Emergencies Act, which authorizes the president to declare emergencies for a variety of purposes — great and small — but offers no definition of emergency.
Any court battle would probably be fought around that definition and its validity, according to Walter Dellinger, head of the Justice Department’s Office of Legal Counsel during the Clinton administration.
That office, which advises the president on constitutional issues, “has an obligation to determine that there is actually a basis” for a declaration of emergency “and to resign if there is not.” It would be “a critical moment for the rule of law” both for them and the attorney general, Dellinger said.
Bobby Chesney, a professor at the University of Texas School of Law, agreed that much would depend on how the Trump administration defines “emergency” and whether the claim is convincing to the courts.
“I think most of us fully understand there is no emergency,” he said. “But it doesn’t follow that everyone will see it that way.”
Trump’s comments about his true motivations for certain actions have regularly upended the White House line and risked undermining his legal team’s defenses. One of the biggest questions hanging over his presidency is how they might play into special counsel Robert S. Mueller III’s Russia investigation and the possibility of obstruction of justice charges — particularly when it comes to admitting that he fired FBI Director James B. Comey with the investigation on his mind.
These latest comments may never doom a national-emergency declaration. But they do make clear — in case it wasn’t already — that Trump formulating this plan at this particular moment in time is no coincidence, and that it probably has less to do with circumstances on the border than in Washington.