Trump’s Abuse of Emergency Powers is Another Ground for Impeachment

President Trump has declared a national emergency in order to build a wall across the southern border of the United States without congressional authorization. This is a ground for impeachment: abusing emergency powers to fund and build a border wall that Congress has explicitly refused to fund. 

Background

The Framers of the Constitution gave each branch of the federal government distinct powers. This principle of separation of powers was designed as a bulwark against any one branch becoming too powerful.

Under Article I of the Constitution, only Congress decides what the federal government will spend money on, and how much: “No money shall be drawn from the treasury, but in consequence of appropriations made by law.” This “power of the purse” is strengthened by the fact that only Congress can raise the money in the first place: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States,” with the proviso that “[a]ll bills for raising revenue shall originate in the House of Representatives.”

The executive branch, of course, has some flexibility in implementation details; Congress generally does not tell federal agencies how much to spend on pens versus pencils, or which brands to buy. But federal government spending is determined by Congress, not the president.

The President’s Emergency Powers

The Constitution has very few emergency provisions, and it assigns them to Congress, not the president. For example, Congress, not the president, has the power of “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” And the 1861 case of Ex parte Merryman confirmed that the power of suspending the writ of habeas corpus “when in Cases of Rebellion or Invasion the public Safety may require it” lies with Congress, not the president.

In the important case Youngstown Sheet & Tube Co. v. Sawyer (1952), also known as the Steel Seizure Case, the Supreme Court held that the president cannot invoke a national emergency to seize private property without congressional authorization. In an influential concurring opinion, Justice Jackson set out three categories of presidential emergency power invocations as against Congress. The first, where the president has his greatest power, is where Congress has authorized the president to act. The second, where Congress has neither authorized nor denied him authority,  is a “zone of twilight.” But the third category is quite different:

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Congress has, in its discretion, granted the president by statute certain emergency authorities. Under the National Emergencies Act of 1976, the president may declare a national emergency and exercise certain emergency powers, subject to specific limits. The statute does not define the conditions for a president declaring a national emergency; Congress granted the president some leeway in determining what is a genuine crisis  because it relied on an assumption of presidential good faith. The statute enumerates the president’s obligations to Congress and the public in the use of specified emergency powers, and procedures for terminating an emergency.

Trump’s Bogus Emergency

There is no serious argument of any actual emergency at the southern border. While Americans can and do differ on immigration policy, there is absolutely no evidence suggesting anything resembling a national emergency with respect to unlawful border crossings, terrorism, or drugs coming through the open areas of the border.

Similarly, there is nothing in any budget passed by Congress that would allow the president to conjure up billions of dollars to build hundreds of miles of border wall that Congress has explicitly refused to authorize. Congress made that clear by twice explicitly refusing to provide the very funding that Trump seeks for this purpose. President Trump could have decided to pursue this funding by asking Congress to pass legislation authorizing it and funding it. While the policy of building a wall is highly controversial, pursuing this policy by asking for congressional authorization would not, by itself, be an additional ground for impeachment. Instead, Trump developed a plan to declare a bogus national emergency.

Trump’s decision to declare a fake emergency at the southern border was not because of the presence of any actual emergency that would require construction of hundreds of miles of wall. Rather, he has done it simply to work around the inconvenience that Congress has not once, but twice explicitly denied funding for that very project. (Indeed, he repeatedly stated in public over the past several weeks that he would declare an emergency only if Congress did not provide the funding he requested, indicating the absence of any genuine emergency.) As Professor Noah Feldman of Harvard Law School observes, “It’s one thing for the president to allocate discretionary funds creatively where Congress hasn’t told him not to do it. It’s quite another for the president directly to defy Congress’s will by spending money on a project Congress has repeatedly refused to authorize.”

In Justice Jackson’s formulation, this is not the twilight category of ambiguity; this is the president “tak[ing] measures incompatible with the expressed or implied will of Congress, [and] his power is at its lowest ebb.” The president’s bogus emergency declaration both abuses the statutory powers conferred under the National Emergencies Act and violates the fundamental principle of separation of powers.

Why Impeachment is Necessary

Court challenges may, in time, stop some of Trump’s planned activity at the border. But Congress has a critical role in preventing authoritarianism. When a president declares a fraudulent emergency for naked political purposes, the claimed exercise of emergency powers is an impeachable abuse of office.

In February 1974, the House Judiciary Committee’s Impeachment Inquiry produced a well-respected report on Constitutional Grounds for Presidential Impeachment. That report examined the history of impeachment in the United States, and divided the impeachable offenses as of that date into three categories. The first category was “exceeding the constitutional bounds of the powers of the office in derogation of the powers of another branch of government.” That is precisely what Trump has done here.

The dangers of not pursuing impeachment hearings are increasingly evident. Presidential emergency powers are quite broad: a recent report noted that powers codified in various emergency statutes could be used to shut down the Internet, sanction Americans, or deploy military forces in U.S. cities. By planning a bogus emergency declaration as an end-run to build a wall that Congress has refused to fund, Trump has not only misused his office in this case, but also shown the danger of allowing him to remain in office with the weighty emergency authorities of the presidency. His ongoing threat to constitutional democracy requires immediate impeachment hearings.

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