The Senate has now joined the House in approving a resolution to terminate President Donald Trump's declaration of a "national emergency" to get billions of dollars that Congress refused to give him for a wall on the southern border. Even Republican Sen. Mike Lee, who led a last-ditch effort to strike a deal with the president, supported the 59-41 congressional rebuke.
The resolution is less than a page long and does little to capture the full human stakes of Trump’s latest act of self-aggrandizement. The declaration itself is causing serious harm to our border communities — and that harm can't be undone if Trump vetoes the resolution, as he has vowed he will. Cities like El Paso, Texas, thrive as safe and successful communities precisely because of their cooperative relationship with the Mexican authorities and people.
Trump’s emergency declaration transforms his personal xenophobia into a national statement of government policy, repainting these communities as dangerous places to live, work or visit. Whether or not federal shovels enter the ground to wreak further havoc, the shadow cast by the declaration undermines the ability of these communities to promote the prosperity of their residents.
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There is one consolation for those injured by Trump’s attempt to seize the power of the purse from Congress: America still has an independent judiciary to quickly intercede. We can still hope that judges across the ideological spectrum, including some appointed by this president, will see this power grab for what it is — a direct assault on our constitutional system of checks and balances, the rule of law and the democratic guard rails that protect us from collapsing into dictatorship.
Building on a tradition reaching back more than 300 years, when the Bill of Rights of 1689 granted British subjects freedom from taxation without parliamentary consent, the Constitution’s Framers hard-wired into our founding document the exclusive congressional power to levy taxes and borrow money. They also included a prohibition against withdrawing money from the Treasury without Congress’ express authorization.
No boundless power even real emergencies
The Framers saw this structure not as a mere technicality but as a core necessity to check executive excess and safeguard basic liberty. And nothing could be clearer than that Congress has never authorized what Trump is doing. Don’t forget, he shut down the government because Congress turned down his $5.7 billion demand for the border wall, agreeing to only $1.375 billion for fencing. Some argue that by giving Trump some money for border security, Congress at least recognized that there’s an emergency. But as any parent knows, a weekly allowance is different from handing over the credit card.
Besides, not even real emergencies give the president boundless power. In a landmark 1952 decision, the Supreme Court rapidly and decisively ended President Harry Truman’s seizure of the steel industry because Congress hadn’t clearly authorized either the seizure or the payment of compensation that it would have required. There, we had a genuine wartime emergency: Steel manufacturing strikes threatened our troops in Korea with serious weapons shortages. Not so here.
Trump says he has the congressional authorization that judicial precedent demands in the National Emergencies Act, passed in 1976 to rein in previously uncodified emergency authority. That act empowers the president, by declaring a “national emergency,” to trigger any of more than 100 federal laws that might permit what the chief executive claims he needs to do. But the military construction laws Trump has designated wouldn’t actually cover this situation even if the “emergency” were a real one.
The only way to call Trump’s action legal would be to treat the term “emergency” and the text of the laws Trump wants to use as meaning whatever the president wants them to mean. But treating the 1976 law as a blank check for a president to whip out at will to circumvent Congress’ decisions would attribute to Congress an unconstitutional abdication of its core Article I powers.
Think of US history, future in vote on Trump veto
To limit the president to his constitutional role of enforcing the laws — not writing them — it’s essential that courts interpret its statutes, as they typically do, using their ordinary meaning. The word “emergency” has never been understood to mean a president’s failure to convince Congress that something is urgently needed. The National Emergencies Act has never been invoked in those circumstances. And, even to a court deferential to the executive, the facts must at some point make a difference.
Here, it’s clear that Congress’ refusal to fund Trump’s wall has created no emergency at the border. The data show that border crossings are at their lowest level since 1971.
Only a tiny fraction of those entering the country — less than 0.2 percent — have a gang affiliation. And although it’s true that most of the opiates in the USA enter through the southern border, the vast majority — an estimated 90 percent of heroin, 87 percent of methamphetamine and 80 percent of fentanyl — come undetected through legal ports of entry and wouldn’t be stopped by a wall. But the most persuasive figure for questioning the existence of an “emergency” is the president himself, who admitted that “I didn’t need to do this.”
This is where Thursday's resolution becomes legally relevant. Even if it fails to become a law, its passage by both the House and Senate makes clear that the president is acting in defiance of Congress’ will, in the zone where executive power is at its lowest ebb. That is true even though the resolution failed to pass by a veto-proof two-thirds majority in the House and Senate. If we required more than a simple majority to conclude that the president is acting in the face of Congress’ opposition, the result would be to unbalance the Constitution’s well-calibrated design.
There was a time when Republicans claimed to care about limiting executive power. Those in the president’s party who failed to rebuke him Thursday have contradicted not just the rhetoric of limited government but in some cases also the explicit concerns they expressed before the vote. When the time comes to vote on overriding the president’s anticipated veto, those members of Congress who are serious about the role of Congress in our constitutional system — a system for which many have given their lives — would be wise to think past their short-term electoral prospects and vote with the country’s history, and its future, firmly in mind.
Laurence Tribe is a constitutional law professor at Harvard, co-author of “To End a Presidency: The Power of Impeachment," and co-counsel for El Paso County in its lawsuit to overturn President Donald Trump's emergency declaration. Follow him on Twitter: @tribelaw
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This article originally appeared on USA TODAY: Trump's 'emergency' is already doing serious harm. Courts must end it if Congress can't.