Emergency Wall

Trump Is Choosing the Nuclear Option. Will He Set Fire to His Presidency?

The president hopes to save face after a stinging legislative defeat. But in declaring a national emergency, the president risks a constitutional challenge—and causing lasting damage to the institution of Congress.

By Tina Nguyen

February 14, 2019

Donald Trump speaks during a rally at the El Paso County Coliseum on February 11 2019 in El Paso Texas.

President Donald Trump will declare a national emergency to build a wall along the U.S.-Mexico border, the White House confirmed Thursday afternoon, shortly after Senate Majority Leader Mitch McConnell strode onto the Senate floor to announce that he would support the president’s power grab. “President Trump will sign the government funding bill, and as he has stated before, he will also take other executive action—including a national emergency—to ensure we stop the national security and humanitarian crisis,” Press Secretary Sarah Huckabee Sanders said in a statement.

Trump had long threatened to use his executive authority to build the wall if Democrats refused to give him the $5.7 billion he had demanded, despite the protestations of lawmakers in his own party. McConnell himself previously warned the president against declaring a national emergency, concerned it would split the Republican Party. In recent days, Trump reportedly convened his staff and advisers to begin drafting a national-emergency declaration for the wall, as it became clear that the omnibus budget would not include money for his signature campaign promise; the latest iteration allocated just $1.375 billion for 55 miles of barriers, fencing, and other security measures. Conservatives, including some of Trump’s top allies on Capitol Hill, panned the deal. Fox News host Sean Hannity, perhaps the president’s most influential outside adviser, called it a “garbage compromise.”

The president’s inability to build the wall, even when Republicans controlled both houses of Congress, has been a continuing personal embarrassment. By declaring a national emergency, Trump can appease his base and save face—but he also risks a massive court battle. The move will likely trigger a constitutional challenge, as it directly circumvents Congress’s power of the purse to address an emergency wholly manufactured by the president. Despite Trump’s insistence that there is a crisis at the border, illegal border crossings are down substantially over the last two decades. While there is a very real asylum crisis at the border, the vast majority of people seeking refuge in the United States, such as members of several recent “caravans,” typically present themselves at ports of entry in order to apply for protected status.

Legal experts believe Trump could win a court challenge over his authority to militarize border-wall construction, and the White House has been preparing for that eventuality. Asked Thursday if they are prepared to litigate a national-emergency declaration, Sanders said, “We’re very prepared, but there shouldn’t be [legal challenges]. The president’s doing his job. Congress should do theirs.”

The larger problem identified by Republican critics is the precedent Trump would set by usurping Congress. After all, if Trump can decide that something qualifies as an emergency when he doesn’t get his way, what’s to stop a future Democratic president from deciding that something like climate change—an actual, global threat to humanity—can be addressed by executive fiat? Trump himself tweeted in 2014, “Repubs must not allow Pres Obama to subvert the Constitution of the US for his own benefit & because he is unable to negotiate w/ Congress.”

Indeed, shortly after Sanders confirmed Trump’s intent to declare an emergency, House Speaker Nancy Pelosi issued a stark warning to Republicans. “Just think what a president with different values can present to the American people,” she said during a press conference Thursday. “You want to talk about a national emergency? Let’s talk about today, the one-year anniversary of another manifestation of the epidemic of gun violence in America. That’s a national emergency. Why don’t you declare that an emergency, Mr. President? I wish you would, but a Democratic president can do that. A Democratic president can declare other emergencies as well.”