It was just last week that Speaker Nancy Pelosi (D-Calif.) promised the American people that her House would be “bipartisan and unifying.” Eight days later, there isn’t a scrap of evidence she meant it. After 20 days of waiting at the negotiating table, President Trump is considering going it alone on the border wall. One of the options being tossed around by the White House is declaring a national emergency — an idea some people think is too far-fetched. But is it? Legal experts say no.
Believe it or not, these types of national emergencies aren’t as unusual as you might think. In two years, President Trump has already declared three. Since 1976, when Congress gave the White House that authority, there have been 58 national emergency declarations — 31 of which, Breitbart’s Ken Klukowski explains, are still in effect today. That includes, Ken points out, the very first national emergency from Jimmy Carter on Iran-sponsored terrorism. But is it, I asked him on Thursday’s “Washington Watch,” a legitimate legal option for the border wall?
“Right now,” Ken said, “the president is going the extra mile with Senate Democrats. The law does not require him to negotiate. He is doing so, and I believe he’s doing so in good faith — trying to find a settlement for everyone to save face.” But, he went on, “in the event that Pelosi and Schumer continue to dig in their heels… the president has unconditional authority to declare a national emergency about anything.”
“Contrary to what you’re hearing from partisan Democrats — and also from hyperventilating media pundits, who are all of the sudden calling themselves legal experts — the fact that there [have] been 31 of these shows how common it is for presidents to do it. If Trump declares a border emergency, [then]… under [the U.S. code], the secretary of Defense can then order military units — including the Army Corps of Engineers and the other construction units of the U.S. military — to direct their personnel and their funding and money and machinery to construction projects… There are billions of dollars that are available to DOD to be able to undertake that project, if the president decides to declare a national emergency.”
After all, this is Defense Department money that’s already been approved by Congress. The president would simply be redirecting it to another national security crisis: the flood of illegal immigrants, drugs, and criminals crossing the border. And in this case, there’s already a precedent for using national emergency declaration to stop the flow of heroin and cocaine into the country. Back in the 1990s, Bill Clinton used the same kind of declaration to deal with narcotics traffickers. As Ken argued in his column, “one of the deadliest drugs killing Americans right now, fentanyl, is made in China — but fully 85 percent of that lethal drug enters the United States through the Mexican border. Such a declaration would be consistent in scope and effect with many of the 31 current emergencies.”
Of course, as with everything this president does, there would almost certainly be lawsuits — even if it’s well within Trump’s legal power to act. “The reality,” Ken says, “is that you’ll always find someone who files a lawsuit… And if you pick the right judicial district, dominated by left-of-center judges, you’re running a pretty good odds that you’re going to get a judge who dares to go where no judge has gone before… We have seen some federal judges at the trial level act like they are nothing short of the resistance of Donald Trump. We have seen some outrageous judicial activist rulings from federal judges…” Even on issues where the Supreme Court would almost certainly side with the president, there’s a good chance the legal battle would put everything on hold for a good “12 or 18 months.”
Of course, “Can the president?” and “Should the president?” are two very different questions. Most people, Donald Trump included, would like to solve this problem legislatively. “I would like to do the deal through Congress,” he’s said. “It makes sense to do the deal through Congress… It would be nice if we can make a deal, but dealing with these people is ridiculous.” The longer Democrats refuse to do their jobs, the more creative Republicans will have to get in order to protect America.
For more on the immigration crisis, check out my column in today’s Washington Times, “Protecting America’s National Home.” Also, don’t miss my full interview with Ken Klukowski, as he takes a deeper look at the prospects of a national emergency declaration.
Tony Perkins’ Washington Update is written with the aid of FRC senior writers.