A National Emergency According to Trump

On Friday the President announced that he would sign the congressional funding bill to prevent the federal government from enduring another partial shut-down and keep funding in place until the end of the fiscal year in September. President Trump then, as expected, signed an executive order declaring a federal emergency at the America southern border. He gave instructions for funds to be transferred to the Department of Homeland Security to pay for the portion of the wall that he had promised to build but for which Congress had only provided approximately 25% of the money he had requested.

In his rambling announcement/press conference, Trump then characterized what he expected to happen including congressional resolutions and federal court cases seeking to block his actions. He, rather assuredly, suggested that he would be vindicated by the Supreme Court as he had been in the case of his Muslim ban.

President Trump’s actions constituted a use of presidential power which is unprecedented. It was a clear dismissal of Congress’s appropriations power in Article I of the Constitution and denied his comprehension of the separation of powers doctrine which has been part of constitutional history. The challenge which Trump presented opens serious questions as to how far he intends to take his theory of presidential power. If indeed President Trump is declaring a national emergency where one does not exist and is reprogramming federal funds where Congress has specifically not granted him authority, how far Trump is prepared to go in challenging the Constitution.

If the President has no compunctions in challenging the legitimacy of Congress, why should one assume that Trump will abide by a Supreme Court decision which does not uphold his actions. Trump does not appear to accept the separation of powers doctrine and displays a clear ignorance of the Constitution, why ought one assume that he will accept a ruling against him. Hopefully, even those who have supported him would view flaunting a Supreme Court decision as a more egregious act and not a political one; by even many of those who have defended the President throughout the Mueller investigation, etc.  (In the midst of the Watergate litigation, President Nixon said explicitly that he would abide by a definitive ruling of the Supreme Court.)

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This could then pose two critical questions. The first is whether the House of Representatives would view his actions as impeachable and proceed with consideration of a bill of impeachment. Even if it acted expeditiously, House action will take time and ultimately the process will require a willingness on the part of the Republican controlled Senate to muster a two-thirds vote to remove the President from office.

Second, it also would pose the challenge for the Vice President and the Members of the President’s Cabinet to invoke the 25^th Amendment to the Constitution. They would need to declare Trump unable to fulfill his duties as President. How quickly this would happen and whether they would be prepared to even consider such an unprecedented move is unknown.