The expanse of executive power

FILE - In this Jan. 9, 2019 file photo, a woman walks on the beach next to the border wall topped with razor wire in Tijuana, Mexico. A group of former U.S. national security officials is set to release a statement on Monday, Feb. 25, arguing that there is no justification for President Donald Trump to use a national emergency declaration to fund a wall along the U.S.-Mexico border. (AP Photo/Gregory Bull, File)

FILE - In this Jan. 9, 2019 file photo, a woman walks on the beach next to the border wall topped with razor wire in Tijuana, Mexico. A group of former U.S. national security officials is set to release a statement on Monday, Feb. 25, arguing that there is no justification for President Donald Trump to use a national emergency declaration to fund a wall along the U.S.-Mexico border. (AP Photo/Gregory Bull, File)

On Feb. 14, President Donald Trump declared a national emergency in order to build a wall spanning the United States-Mexico border. The wall was Trump’s most infamous campaign promise, one he now plans to fulfill without the consent of the U.S. Congress. The national emergency is expected to grant eight billion dollars to begin construction on the border wall. Declaring a national emergency in order to fulfill a campaign promise is a gross abuse of power and outside the Founding Fathers intentions for the presidency.

National emergencies are declared by the President but can be terminated by either the president or by Congress. Democratic Congressman Joaquin Castro introduced a resolution on Friday to terminate the national emergency, but it would need some Republican support due to needing a two-thirds majority vote in both Chambers of Congress to succeed. This situation is the opposite of how legislation is supposed to be implemented. Congress writes and votes on bills, and the president signs or vetoes the bill. Here, the president has implemented a policy by force, and Congress essentially only has veto power. The government is set up so both chambers of Congress and the president must be in agreement to pass policy, but here the president and just over one-third of one Chamber of Congress is enough enact a policy.

The judicial system could also rule the national emergency unconstitutional. In the San Francisco federal court, 16 states jointly filed a lawsuit opposing the declaration a national emergency on the southern border. The case is likely to end up in the Supreme Court. The four liberal justices on the Supreme Court will likely rule against Trump, so it will take just one of the five conservative justices to terminate the national emergency. When conservative judges are appointed, Republicans usually argue they are superior to “activist” liberal judges because they honor the Constitution to its original intent and will not attempt to “legislate from the bench.” The conservative justices have an opportunity to prove that claim by restoring the constitutionally defined order of ratifying policy. The justices also must be aware that the US’s policy of judicial precedent means that the decision in a case as important as this one could have implications on future cases.

If Bernie Sanders became president and declared a national emergency on healthcare, Trump supporters would be rightfully outraged. That would stretch the use of national emergencies even further, but national emergencies have been used for public health crises. President Obama in 2009, in response to the H1N1 influenza pandemic, declared a national emergency that allowed the Department of Human and Health Services to temporarily waive Medicare and Medicaid restrictions in order to distribute the vaccine and treat the disease. Using a national emergency to achieve universal healthcare almost writes itself: “We have a national healthcare crisis in this country, people are dying to treatable diseases due to not being able to afford healthcare, and our healthcare is the worst among developed countries.”

Another risk of declaring a national emergency is “crying wolf.” If presidents keep making tenuous claims of national emergencies, Congress may eventually attempt to curb the executive branch’s ability to declare them. This would leave the country slower to react to real emergencies, such as after 9/11 when President George W. Bush invoked a national emergency increasing his ability to call troops from the National Guard.

This declaration of national emergency may be Trump’s worst action as president yet. Trump’s temporary “travel ban” on persons from seven predominantly Muslim countries was also a garish use of executive power. However, the national emergency creates a new way for presidents to deploy populist policies. It’s difficult to argue that electing Democratic politicians will solve the issue of abusing executive authority. Obama used an executive action to implement Deferred Action for Parents of Americans (DAPA), which allowed illegal immigrants to stay in the country if they had lived in the US since 2010 and had a child who was an American citizen. Even if you consider DAPA to be a good policy, it still hurts potential Democratic candidates’ ability to claim they will be a restrained leader.

We need to start considering a politician’s power-hungry tendencies to be just as important as their proposed policies. Good policy is important, but maintaining a healthy democracy is paramount.


Matthew Nota is a contributor for The Daily Campus. He can be reached via email at matthew.nota@uconn.edu.