Donald Trump has done very well for himself by sowing fear. Nothing, it turns out, motivates voters more.
And that’s why, I suspect, he is hesitating to declare a “national emergency” to build his border wall.
Our nation’s political and legal elites recognize that declaring a “national emergency” as defined by the National Emergencies Act of 1976 has never been a big deal before: presidents routinely declare them under very specific circumstances, to unlock very specific authorities. Trump has already declared three, all of them blocking the property or imposing sanctions on officials in Nicaragua, Russia and a variety of other countries. There are a total of 32 currently active, according to a great chart by CNN.
“What Congress is really doing here is saying ‘here are special authorities for special cases’,” University of Texas law professor Steve Vladeck said in a conference call organized by the American Constitution Society on Friday.
But Trump, who is savvy about working a crowd, must realize that to ordinary people the term national emergency in a big headline conjures up much scarier images. I’m betting it polls real badly, too.
“When people hear ‘national emergency,’ they think martial law. They think crisis. They think all sorts of horrible things,” Vladeck said.
So where “build the wall” is dog-whistle for “stop brown people from ruining America” for Trump’s base, declaring a much-publicized “national emergency” could well be the spark that sends ordinary people into the streets, panicked about an unhinged president taking the law into his own hands.
For whatever reason, it’s obvious that Trump is conflicted about what to do. His comments about declaring a national emergency have been labored even by his standards.
So, for instance, he told a gaggle of reporters Thursday afternoon: “I have the absolute right to declare a national emergency. I haven’t done it yet. I may do it. If this doesn’t work out, probably I will do it. I would almost say definitely.”
Then he told Sean Hannity a few hours later: “Now if we don’t make a deal with Congress, most likely I will do that. I would actually say I would. I can’t imagine any reason why not because I’m allowed to do it.”
On Friday afternoon, he said at the White House: “The easy solution is for me to call a national emergency. I could do that very quickly. I have the absolute right to do it. But I’m not going to do it so fast because this is something Congress should do.”
Moments later: “What we’re not looking to do right now is national emergency.”
Then he said if House Speaker Nancy Pelosi and Senator Minority Leader Chuck Schumer simply tell him they aren’t going to fund a wall – which they have, several times – that would be a trigger: “And if they can’t do it – if they yell that we can’t do it, ‘there’s no way we can vote for security, there’s no way we can vote for security,’ all Nancy and Chuck have to do is tell me and you know what? We’ll start thinking about another alternative.”
Then moments later, again: “Congress should do this. It they can’t do it, I will declare a national emergency”
Practically speaking, while there is nothing preventing Trump from unilaterally declaring any number of national emergencies, that does not mean he can simply do whatever he wants afterward.
As the Brennan Center’s Liza Goitein explained in an article in the Atlantic that I called attention to last week (because parts of it are quite scary) there are 136 special provisions that become available in different kinds of national emergencies — but they are all very specific and none allow for martial law.
There are two provisions in particular that Trump might use to justify ordering the military to build the wall — 10 USC 2808 and 33 USC 2293 – but even they have such specific requirements that any use of them would inevitably lead to forceful legal challenges.
And while neither the Constitution nor Congress have ever defined what a “national emergency” is – and the courts are notably deferential to the president’s commander-in-chief authorities – presumably some members of the judiciary would be willing to rule that it’s not a “national emergency” just because Congress refuses to go along with the president.