Perpetual Emergency

It is being widely speculated that President Trump will declare a national emergency and start building his wall. From CNN:

Washington (CNN)President Donald Trump plans to sign a compromise border security measure Friday and then announce that he is using executive action, including declaring a national emergency, to spend $8 billion for border barriers, a White House official said.

The move will end, for now, a bitter standoff with Congress over his signature campaign promise. But it will likely spark a new constitutional dispute over whether the President is overstepping his authority.

The initial news of Trump’s decision came via Senate Majority Leader Mitch McConnell, who said Trump would sign the bill to avoid a shutdown and then declare a national emergency at the same time.

The White House official says Trump is expected to announce that he will use executive action to draw on a variety of administration funding sources to help finance construction of his wall on the border. A national emergency declaration is expected to be one part of that.

An unnamed “White House official” is barely competent reporting let alone a castiron guarantee but, if Mr. Trump does goes ahead and build his wall, it will be anticlimactic. That has been speculated for months. The inevitable court challenges will be anticlimactic as well.

There is already a constitutional crisis under way but it’s been under way for more than a half century. The Congress has been delegating its powers to the executive branch with alarming and unconstitutional regularity. If the Supreme Court refuses to rule on delegation, as the past would suggest, it will continue our headlong march to autocracy, created by the refusal of the Congress or the Supreme Court to do their own damned jobs.

The editors of the New York Times declaim in preemptive reaction:

With his intention to declare a national emergency at the southern border, President Trump is planning to take executive overreach to dizzying new heights. The damage to American democracy threatens to linger long after his administration is no more than a dank memory.

Cornered into accepting a budget deal that lacked the $5.7 billion in border-wall funding he demanded, the president could not handle being labeled a loser by conservative commentators like Laura Ingraham and Sean Hannity. His solution: Sign the bill while simultaneously declaring a national emergency that, at least in his mind, would allow him to shift funds and order the military to start building his wall.

That the authority to do that may already have been delegated to the president by the Congress never seems to occur to them.

Update

President Trump issued his declaration of emergency this afternoon. Here is the text of the statement:

The current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency. The southern border is a major entry point for criminals, gang members, and illicit narcotics. The problem of large-scale unlawful migration through the southern border is long-standing, and despite the executive branch’s exercise of existing statutory authorities, the situation has worsened in certain respects in recent years. In particular, recent years have seen sharp increases in the number of family units entering and seeking entry to the United States and an inability to provide detention space for many of these aliens while their removal proceedings are pending. If not detained, such aliens are often released into the country and are often difficult to remove from the United States because they fail to appear for hearings, do not comply with orders of removal, or are otherwise difficult to locate. In response to the directive in my April 4, 2018, memorandum and subsequent requests for support by the Secretary of Homeland Security, the Department of Defense has provided support and resources to the Department of Homeland Security at the southern border. Because of the gravity of the current emergency situation, it is necessary for the Armed Forces to provide additional support to address the crisis.

NOW, THEREFORE, I, DONALD J. TRUMP, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.), hereby declare that a national emergency exists at the southern border of the United States, and that section 12302 of title 10, United States Code, is invoked and made available, according to its terms, to the Secretaries of the military departments concerned, subject to the direction of the Secretary of Defense in the case of the Secretaries of the Army, Navy, and Air Force. To provide additional authority to the Department of Defense to support the Federal Government’s response to the emergency at the southern border, I hereby declare that this emergency requires use of the Armed Forces and, in accordance with section 301 of the National Emergencies Act (50 U.S.C. 1631), that the construction authority provided in section 2808 of title 10, United States Code, is invoked and made available, according to its terms, to the Secretary of Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military departments. I hereby direct as follows:

Section 1. The Secretary of Defense, or the Secretary of each relevant military department, as appropriate and consistent with applicable law, shall order as many units or members of the Ready Reserve to active duty as the Secretary concerned, in the Secretary’s discretion, determines to be appropriate to assist and support the activities of the Secretary of Homeland Security at the southern border.

Sec. 2. The Secretary of Defense, the Secretary of the Interior, the Secretary of Homeland Security, and, subject to the discretion of the Secretary of Defense, the Secretaries of the military departments, shall take all appropriate actions, consistent with applicable law, to use or support the use of the authorities herein invoked, including, if necessary, the transfer and acceptance of jurisdiction over border lands.

Sec. 3. This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

IN WITNESS WHEREOF, I have hereunto set my hand this fifteenth day of February, in the year of our Lord two thousand nineteen, and of the Independence of the United States of America the two hundred and forty-third.

IMO this is a bad precedent and the inevitable court challenges will be bad precedent as well.