On February 15th, 2019 President Trump held a national press conference announcing his declaration of a National Emergency at the Border with Mexico. This declaration allowed him to utilize his Executive Powers in order to use government funds to build a wall at the Southern Border, a wall he promised his supporters he would create throughout his campaign for president. He pulled these funds from the Pentagon’s budget under Section 2808 of Title 10 of the US Code [1]. This code required that Trump mobilize troops in order to use the funds, a mobilization that has been quite controversial as Trump moved these troops to the border, where many argue they are unnecessary given the existence of the United States Border Patrol. This announcement came after Congress refused to allocate additional funds in the Government’s budget to build the long-promised wall. With the declaration of a National Emergency, a declaration that is well within Trump’s right to invoke according to law, he can utilize more than 100 special provisions including the ability to deploy troops [2]. The National Emergencies Act of 1976 forced the President, when making a declaration, to specify which powers he would use and report to Congress on the expenditures associated with this emergency every 6 months [3]. However, this act does little to curtail the President’s authority during these special times. While declarations of a National Emergency have been infrequent, the most recent being Bush’s declaration of a National Emergency post 9/11, Trump’s use of this power so quickly after being denied by Congress the ability to build the wall begs the question, was this a case of democratic erosion?

The powers of the President have expanded in recent years, and much of the President’s powers are not written in the Constitution. The power to declare a National Emergency, and the rules that govern this power, are confined to Congress in the Constitution, not the President. However, through a number of laws passed throughout the 19th and 20th centuries the President gained greater and greater power during a National Emergency. The original idea behind this power was that during certain times of crisis, the Government may be too constrained by traditional laws to be able to exercise the authority they need to govern the country. Thus, in these times they are allowed to declare a National Emergency and gain additional power for the duration of the emergency. Thus, while the power Trump invoked was not in the constitution, it is legally allowed.

In their book How Democracies Die Levitsky and Ziblatt discuss how constitutional safeguards are not enough to ensure that a country has a secure democracy [4]. Instead, they discuss the importance of democratic norms that govern a society unofficially, and that if sustained, help maintain a stable democracy. Specifically, one of the norms that they discuss is institutional forbearance in which politicians avoid actions that while legal, violate the law’s spirit. Levitsky and Ziblatt discuss the importance of executive forbearance in that the President should follow the United States’ democratic norms and self-limit the amount to which he uses his power. In this case, Trump seems to have violated this norm. Trump is on record as stating that “I [Trump] didn’t need to do this [declare the state of emergency], but I’d rather do it much faster,” adding that “ I [Trump] just want to get it done faster, that’s all” [5].These comments clearly show a violation of this norm. Trump in this case is admitting to overriding the checks and balances built into our Constitution, for no reason other than the fact that he wanted to pass his policy faster. This is clearly a violation of executive forbearance, as he has shown no discretion in his use of authority and has clearly not respected the balances of our government as an institution.

While Trump’s actions are a violation of executive forbearance this does not mean that this is a case of democratic erosion. Trump’s declaration was instantly challenged in the courts, who have yet to rule on whether or not the declaration was constitutional. Trump faces a number of lawsuits in regards to his declaration, including from those who own land on the border, as well as from state governments, environmental agencies, and Native American tribes living on or near the border [6]. Trump has firmly stated that he believes the court will uphold the ban. However, all of these lawsuits could have the potential to delay the building of the wall for a long period of time, perhaps even until a new president is elected who can then decide to continue or forego Trump’s declaration.

In their book How To Save a Constitutional Democracy Ginsburg and Huq explicitly cite the example of the President using their power to declare a National Emergency as a potential example of an erosion of democracy [7]. In this case, it seems clear that at the very least Trump’s declaration degraded America’s democratic norms, as discussed by Levitsky and Ziblatt. Trump’s blatant statement that he knowingly bypassed Congress to enact policy they do not support seems a clear attempt to eliminate institutional checks on his power. However, it is up to the courts to decide if they will allow this to stand. Until they rule in his favor, it is still plausible that one of the United States’ governmental checks on power will stop this erosion of democracy, and perhaps even prevent it from occurring in the future. However, if the Courts rule in his favor, it will clearly signify an erosion of democracy as Trump will have succeeded in bypassing democratic norms and eroding the checks and balances inherent in the United States’ governmental system. Thus, it is up to the courts to decide if this attempt at democratic erosion will be successful.

References

[1] Alvarez, Priscilla. “Will the Supreme Court Stop Trump’s National Emergency?” CNN. February 15, 2019. Accessed April 21, 2019. https://www.cnn.com/2019/02/15/politics/national-emergency-supreme-court/index.html.

[2] Goitein, Elizabeth. “The Alarming Scope of the President’s Emergency Powers.” The Atlantic. February 15, 2019. Accessed April 21, 2019. https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/.

[3] H.R. 3884, 94th Cong., U.S. G.P.O. (1976) (enacted).

[4] Levitsky, Steven, and Daniel Ziblatt. How Democracies Die. London: Penguin, 2019.

[5] Baker, Peter. “Trump Declares a National Emergency, and Provokes a Constitutional Clash.” The New York Times. February 15, 2019. Accessed April 21, 2019. https://www.nytimes.com/2019/02/15/us/politics/national-emergency-trump.html.

[6] Romero, Simon. “Trump Declared a Border Emergency. Here’s How It Could Be Undone in Court.” The New York Times. February 16, 2019. Accessed April 21, 2019. https://www.nytimes.com/2019/02/15/us/border-wall-national-emergency.html.

[7] Ginsburg, Tom, and Aziz Z. Huq. How to save a Constitutional Democracy. Chicago: University of Chicago Press, 2018.

Photo by Jonathan McIntosh, “The Wall in Neco”, Creative Commons Zero license.