Trump Declares a National Emergency, and Provokes a Constitutional Clash – The New York Times16 Febbraio 2019
The president’s decision incited instant condemnation from Democrats, who called it an unconstitutional abuse of his authority and vowed to overturn it with Republican support.
By Peter Baker
WASHINGTON — President Trump declared a national emergency on the border with Mexico on Friday in order to access billions of dollars that Congress refused to give him to build a wall there, transforming a highly charged policy dispute into a confrontation over the separation of powers outlined in the Constitution.
Trying to regain momentum after losing a grinding two-month battle with lawmakers over funding the wall, Mr. Trump asserted that the flow of drugs, criminals and illegal immigrants from Mexico constituted a profound threat to national security that justified unilateral action.
“We’re going to confront the national security crisis on our southern border, and we’re going to do it one way or the other,” he said in a televised statement in the Rose Garden barely 13 hours after Congress passed a spending measure without the money he had sought. “It’s an invasion,” he added. “We have an invasion of drugs and criminals coming into our country.”
But with illegal border crossings already down and critics accusing him of manufacturing a crisis, he may have undercut his own argument that the border situation was so urgent that it required emergency action. “I didn’t need to do this, but I’d rather do it much faster,” he said. “I just want to get it done faster, that’s all.”
The president’s decision incited instant condemnation from Democrats, who called it an unconstitutional abuse of his authority and vowed to try to overturn it with the support of Republicans who also objected to the move.
“This is plainly a power grab by a disappointed president, who has gone outside the bounds of the law to try to get what he failed to achieve in the constitutional legislative process,” Speaker Nancy Pelosi of California and Senator Chuck Schumer of New York, the Democratic leader, said in a joint statement.
Mr. Trump’s announcement came during a freewheeling, 50-minute appearance in which he ping-ponged from topic to topic, touching on the economy, China trade talks and his coming summit meeting with North Korea’s leader, Kim Jong-un. The president again suggested that he should win the Nobel Peace Prize, and he reviewed which conservative commentators had been supportive of him, while dismissing Ann Coulter, who has not.
Sounding alternately defensive and aggrieved, Mr. Trump explained his failure to secure wall funding during his first two years in office when Republicans controlled both houses of Congress by saying, “I was a little new to the job.” He blamed “certain people, a particular one, for not having pushed this faster,” a clear reference to former Speaker Paul D. Ryan of Wisconsin, a Republican.
Mr. Trump’s assertions were replete with misinformation and, when challenged by reporters, he refused to accept statistics produced by his own government that conflicted with his narrative.
“The numbers that you gave are wrong,” he told one reporter. “It’s a fake question.”
On point after point, the president insisted that he would be proved correct. “People said, ‘Trump is crazy,’” he said at one point, discussing his outreach to Mr. Kim. “And you know what it ended up being? A very good relationship.”
Mr. Trump acknowledged that his declaration of a national emergency would be litigated in the courts and even predicted a rough road for his side. “Look, I expect to be sued,” he said, launching into a mocking riff about how he anticipated lower court rulings against him. “And we’ll win in the Supreme Court,” he predicted.
Indeed, Public Citizen, an advocacy group, filed suit by the end of the day on behalf of three Texas landowners whose property might be taken for a barrier. California and New York likewise announced that they will sue over what Gov. Gavin Newsom of California called the president’s “vanity project,” and a roster of other groups lined up to do the same. “Fortunately, Donald Trump is not the last word,” said Mr. Newsom, a Democrat. “The courts will be the last word.”
Among those predicting a flurry of judicial decisions against Mr. Trump was George T. Conway III, a conservative lawyer and the husband of Kellyanne Conway, the president’s counselor. “If he knows he is going to lose,” Mr. Conway, a vocal critic of Mr. Trump, wrote on Twitter, “then he knows he is violating the Constitution and laws he has sworn to uphold.”
The House Judiciary Committee announced Friday that it would investigate the president’s emergency claim, while House Democrats plan to introduce legislation to block it. That measure could pass both houses of Congress if it wins the votes of the half-dozen Republican senators who have criticized the declaration, forcing Mr. Trump to issue the first veto of his presidency.
The emergency declaration, according to White House officials, enables the president to divert $3.6 billion from military construction projects to the wall. Mr. Trump will also use more traditional presidential discretion to tap $2.5 billion from counternarcotics programs and $600 million from a Treasury Department asset forfeiture fund.
Combined with $1.375 billion authorized for fencing in the spending package passed on Thursday night, Mr. Trump would have about $8 billion in all for barriers, significantly more than the $5.7 billion he unsuccessfully demanded from Congress.
The president opted not to tap hurricane relief money from Texas or Puerto Rico, an idea that had generated angry complaints from Republicans. But he expressed no concern that diverting military construction money would delay projects benefiting the troops like base housing, schools and gyms. “It didn’t sound too important to me,” he said.
Trump’s Emergency Declaration Is the First Since 9/11 to Authorize Military Action
Here’s how President Trump’s border wall fits on the list of emergency declarations.
Neither the White House nor the Pentagon had yet identified which projects may be shelved as a result, but Pentagon lawyers and other officials planned to work over the weekend to identify which construction funds would be diverted.
The declaration also provided that land may be transferred to the Defense Department from other federal agencies or from privately purchased or condemned land. The next step would be to secure those lands, where the Pentagon would erect barriers. The declaration gives Patrick Shanahan, the acting defense secretary, broad latitude to carry out this process.
Most Americans oppose Mr. Trump’s emergency declaration, according to polls. One released this week by Fox News found 56 percent against it, including 20 percent of Republicans.
Mr. Trump’s desire for approval by Fox and other conservative news outlets was on display when he identified various pundits as supporters, naming Sean Hannity, Laura Ingraham, Tucker Carlson and Rush Limbaugh, although he insisted that “they don’t decide policy.”
But Ms. Coulter, who has viscerally attacked Mr. Trump for caving on the wall, has clearly gotten under his skin. “I don’t know her,” he said before quickly correcting himself. “I hardly know her. I haven’t spoken to her in way over a year.” He noted, though, that she was an early predictor of his election victory. “So I like her, but she’s off the reservation,” he said. “But anybody that knows her understands that.”
Ms. Coulter fired back shortly afterward. “The only national emergency is that our president is an idiot,” she said on KABC radio in Los Angeles.
White House officials rejected criticism from across the ideological spectrum that Mr. Trump was creating a precedent that future presidents could use to ignore the will of Congress. Republicans have expressed concern that a Democratic commander in chief could cite Mr. Trump’s move to declare a national emergency over gun violence or climate change without legislation from Congress.
“It actually creates zero precedent,” Mick Mulvaney, the acting White House chief of staff, told reporters. “This is authority given to the president in law already. It’s not as if he just didn’t get what he wanted so he’s waving a magic wand and taking a bunch of money.”
Presidents have declared national emergencies under a 1970s-era law about five dozen times, and 31 of those prior emergencies remain active. But most of them dealt with foreign crises and involved freezing property, blocking trade or exports or taking other actions against national adversaries, not redirecting money without explicit congressional authorization.
White House officials cited only two times that such emergency declarations were used by presidents to spend money without legislative approval — once by President George Bush in 1990 during the run-up to the Persian Gulf war, and again by his son, President George W. Bush, in 2001 after the terrorist attacks in New York, Washington and Pennsylvania.
In both of those cases, the presidents were responding to new events — the Iraqi invasion of Kuwait and Al Qaeda’s assault on the United States — and were moving military funds around for a military purposes. Neither was taking action specifically rejected by Congress.
In Mr. Trump’s case, he is defining a longstanding problem at the border as an emergency even though border apprehensions have actually fallen in recent years, to 400,000 in the last fiscal year from a peak of 1.6 million in the 2000 fiscal year. And unlike either of the Bushes, he is taking action after failing to persuade lawmakers to go along with his plans through the regular appropriations process.
The spending package passed Thursday by Congress included none of the $5.7 billion that Mr. Trump demanded for 234 miles of steel wall. Instead, it provided $1.375 billion for about 55 miles of fencing. Mr. Trump signed the package into law on Friday anyway to avoid a second government shutdown after the impasse over border wall funding closed the doors of many federal agencies for 35 days and left 800,000 workers without pay.
For weeks, Republicans led by Senator Mitch McConnell of Kentucky urged Mr. Trump not to declare a national emergency, but the president opted to go ahead anyway to find a way out of the political corner he had put himself in with the failed effort to force Congress to finance the wall.
Mr. McConnell privately told the president that he would support the move despite his own reservations, but warned Mr. Trump that he had about two weeks to win over critical Republicans to avoid having Congress vote to reject the declaration.
Mr. Trump was among those Republicans who criticized President Barack Obama for using his executive authority to spare millions of illegal immigrants from deportation after failing to persuade Congress to do so. “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,” Mr. Trump tweeted in 2014.
But Mr. Trump sought to drive home the personal toll of illegal immigration, inviting to the Rose Garden several relatives of Americans killed by people in the country without authorization. Some of the relatives, known as “angel moms,” stood up holding pictures of loved ones who had died.
“Matthew’s death was preventable and should have been prevented,” one of the women, Maureen Maloney, said in an interview after the event. Her son Matthew Denice, 23, was killed in 2011 in a motorcycle accident in Massachusetts after colliding with an automobile driven by an undocumented immigrant. “He should have never been here in the first place,” she said. “If he wasn’t here, it wouldn’t have happened.”