NSI Experts Weigh In: National Emergency Declaration

Today, the President announced that he would be declaring a national emergency in order to build a wall along the southern border.  Our experts weighed in on the wisdom of that decision. 

February 15, 2019

Matthew R. A. HeimanMatthew R. A. Heiman – NSI Senior Fellow and Associate Director for Global Security; Chairman, Cyber & Privacy Working Group, Regulatory Transparency Project

The President’s decision to declare a national emergency in order to redirect funds to build a wall along the U.S. southern border is a mistake for legal, political, and institutional reasons.  Like eating junk food, the satisfaction could well be temporary. First, this decision will be the subject of court challenges, and the President may lose.  Questions such as whether this is an emergency and why is this an emergency now will feature prominently.  Second, the decision is a political mistake.  At some point, there will be a Democratic President and a Republican controlled Senate or House, and the Democratic President may decide that climate change or private ownership of firearms is a national emergency that needs to be addressed without congressional authorization.  Third, the lack of an obvious national emergency, such as a war or a natural disaster, feeds the notion that the President is exceeding his Article II and statutory authorities.  When a branch pushes its powers near or past institutional limits, the reaction of the other branches can leave that branch weaker than before it acted (e.g. the Presidency after Watergate).  If President Trump wants more money for border walls, he should use the bully pulpit afforded by his office.  This requires marshaling the facts, using compelling imagery and stories, and rallying Americans to pressure Congress for more funding or vote out those legislators that object.  That’s the best and most effective way to accomplish lasting change.

Jamil N. Jaffer – NSI Founder and Executive Director; former Chief Counsel and Senior Advisor for the Senate Foreign Relations Committee and former Associate Counsel to President George W. Bush

“While there is no question that we need to do a better job in addressing illegal immigration as a nation, the fact is that there isn’t a national security emergency on our southern border today.  And even if there were such an emergency, a huge new border wall is not the solution.  Better, smart enforcement of existing laws is the right approach, as is strengthening our laws and capabilities.  The bipartisan legislation passed by Congress is a good step in the right direction of these changes.  Going forward, we also need immigration laws that account for the critically important contribution that legal immigrants make to our nation and our economy, including significantly and smartly expanding the scope and nature of legal immigration as well as putting in place additional provisions to limit illegal immigration and enforce existing laws.”

Harold Moss – NSI Visiting Fellow; Senior Director Strategy & Business Development, Web Products, Akamai Technologies

The utilization of the national emergency power by the President would move us further away from the democratic values America is built upon, and further deepen the partisan divide facing our nation today.

By taken this unprecedented action, the President is effectively rejecting the notion of free government for what our founding fathers found abhorrent which is an absolute monarchy.  The powers offered to the executive branch to declare a National emergency, were intended to address the need for timely response to “events” or “emergencies” not to further political commitments. The Presidents own comments, clarify that this is in fact not an emergency but a desire to accelerate his political objectives.

What is  particularly concerning was the Presidents assertions about the security of the ports of entry, to which he promptly undermined his own claims by introducing his own request of the Chinese prime minister with respect to Fentanyl as well as referencing the 2017 New York attacker who did not enter the country through our southern border. All of these arguments and many more will certainly be introduced in inevitable legal challenges and further server to divide the nation.”

Disclaimer: The views and opinions expressed in this analysis are those of the authors and do not necessarily reflect the official policy or position of the National Security Institute or any agency of the U.S. government. Assumptions made within the analysis are not reflective of the position of the National Security Institute or any U.S. government entity.