US president Donald Trump’s declaration of a national emergency, using powers conferred on him by the National Emergencies Act 1976, in order to release funds to build his border wall immediately was met with opposition. Many questioned whether such an emergency actually exists, a point Trump himself added fuel to when he brazenly admitted that: “I didn’t need to do this. But I’d rather do it much faster … I just want to get it done faster.” Already, 16 states have lodged a legal case against the Trump administration challenging this decision.
Unlike many other constitutions, the US Constitution confers no additional powers on the executive during an emergency. But while the constitution itself may be silent on emergency powers, Congress has over time conferred a vast array of legislative powers on the president, which they can trigger when a national emergency is declared. In fact, a study by the Brennan Centre for Justice found that the US president has 123 statutory powers at their disposal when they declare an emergency. It is these powers that Trump wants to authorise up to US$6.7 billion in additional funding to build his border wall.
But does a national emergency currently exist in the US? In general, emergencies are sudden, temporary and unforeseen crises that require an exceptional response – one not permissible when “normal” conditions exist. The emergency response should itself also be temporary due to its exceptional and ordinarily impermissible nature.
The entire purpose of the emergency response should be to neutralise the emergency in the first place and thus negate the need for emergency powers. The exceptional nature of emergency powers, however, should mean that they come with a major health warning. They have the potential to undermine fundamental principles of constitutionalism, such as the rule of law, the separation of powers, and human rights.
From Julius Caesar to Adolf Hitler, history is replete with examples of emergency powers being used to damage the very constitutional order they were designed to protect. They should therefore only be used when it is strictly necessary.
Emergencies are, however, difficult to define precisely. Indeed, their very nature often means that they have to be defined broadly in order to capture any unforeseen circumstances. Legal definitions of an emergency often include illustrative examples, such as a “war” or “natural disasters”. Another common approach is to define an emergency, not by its cause but by its consequences – for example, that it “threatens the life of the nation”. Often, a definition will do both.
Either way, under this understanding, one would expect a crisis to be very severe in order for it to be classed an emergency. Consequently, it should also be a very rare event, declared only when absolutely necessary.
So it is difficult to see how the US currently is facing a national emergency. Is a wall really necessary to ensure the essential survival of the US? The US government’s own data undermines this claim, as unlawful immigration is currently at a 45-year low. But even if it were not, does unlawful immigration really “threaten the life of the nation”?
The National Emergencies Act 1976, however, contains no definition of what constitutes a national emergency; rather, it merely states that “the President is authorized to declare such national emergency”. It is one thing to define an emergency broadly – it is quite another to fail to define an emergency at all.
The result, therefore, is that it is likely to prove difficult to challenge Trump’s declaration of a national emergency on the grounds that no real emergency actually exists. Indeed, even if an emergency were defined precisely, courts across the globe have been notoriously reluctant to second guess this decision by the political branches. (Both the UK courts and the European Court of Human Rights found that an emergency existed in the UK after September 11 2001, for example, even though it was the only state in Europe to declare an emergency. Both courts did, however, find that the measures taken by the UK – indefinite detention for non-UK citizens without trial – were disproportionate to the emergency.)
Who gets to decide?
Just because something is difficult, however, does not mean that it is not worth trying. Despite the lack of a concrete definition of an emergency, the courts may look into the fundamental aspect of any emergency: necessity.
Moreover, a legal challenge will not just focus on whether an emergency exists, but on whether the legislative powers that Trump has attempted to unlock by declaring an emergency can actually be used to build his wall. This latter ground may bear more fruit – although, as I have argued elsewhere, this should not undermine the importance of the first question: whether it is necessary or not?
Whatever the legal outcome, if some good is to come of this, it is that Trump has exposed the consequences of entrusting in the executive unfettered power to declare an emergency.
The role of Congress
While much focus may be on the judicial battle ahead, the role of Congress should not be overlooked. Congress, after all, can overrule the president’s declaration of national emergency – although this is unlikely due to the Republican majority in the Senate.
Nevertheless, we should scrutinise Congress’s decision to confer such power on the presidency in the first place. For, in short, Trump is using powers conferred on the presidency by Congress in order to circumvent congressional control of the budgeting process.
The irony in all of this is that the National Emergencies Act was supposed to recalibrate the balance between the legislature and the executive in a post-Watergate US, where everyone was acutely aware of the dangers of unfettered executive power. Indeed, while the Act sought to regulate future national emergencies in the US, it also terminated any emergency that was still in existence at the time it was enacted.
A 1973 Senate Investigation found that at the time there were four simultaneous declarations of emergency still in effect, ranging from the 1933 banking crisis to the 1950 Korean War. But by failing to include a clear definition of what an emergency is, and leaving that entirely up to the executive, the National Emergencies Act has ended up facilitating, rather than limiting, an over-muscular executive.
Trump’s declaration is merely the latest in a long line of questionable emergencies – not just in the US, but by executives across the globe. If it is a power we do not want President Trump to have, then it should be a power we do not want any president to have. Certainly, wherever a national emergency can be declared, it should be accompanied by appropriate checks and balances.