Will the courts—and, in particular, the Supreme Court—uphold Trump’s purported use of his powers under the National Emergencies Act of 1976? Like many legal questions, the issue is, at one and the same time, both complex and simple. And, if you wish to gain a basic understanding of the relevant legal reasoning—as opposed to emoting and bloviating about it—then you need to grasp both the complexity and the simplicity of the matter.
Here, the complexities involve constitutional law, identification of all the relevant statutes, interpretation of the pertinent statutes (including a fair amount of case law), and a lot of theological reasoning about who would, and who would not, have “standing” to appear in court as a plaintiff to challenge Trump’s actions. For a quick summary, I recommend yesterday’s post from the Journal of the American Bar Association, Can Trump legally use emergency powers to build a border wall? Experts weigh in.
My sense is that the good folks at the ABA Journal have gone a little bit out of their way to find Trump-friendly legal experts to pontificate on all these legal complexities. But, if you actually want to understand a legal issue, then you need to begin by wrapping your mind around your adversary’s best arguments (or his least bad arguments, as the case may be).
Now for the fundamental, simple issues.
The Humpty Dumpty Rule of Statutory Interpretation
In 1976, Congress made a considered decision not to include language defining “emergency” in the National Emergencies Act. Trump appears to reason that Congress thus made him a presidential Humpty Dumpty, with the power to define the term any way he wants to define the term.
Trump did not go to law school. If he had done so, then he would have learned that if you want to know what a word in a statute means, then—absent a specific statutory definition—you look to the dictionary, and then you consider what the dictionary says in light of public policy. In other words, your legal analysis must be informed by an understanding of what problem Congress thought it was addressing when it enacted the statute.
Merriam-Webster says “emergency” means “an unforeseen combination of circumstances or the resulting state that calls for immediate action” or “an urgent need for assistance or relief.”
In context, the argument is that a national emergency justifying extraordinary presidential action means a situation demanding immediate action, that Congress did not foresee and provide for, or that Congress does not have time to consider and provide for.
A Rational Relation Between the Perceived Emergency and the Presidential Action
Reports this morning are that Trump intends to divert $2.5 billion from current drug interdiction problems, in order to build a wall that will not stop drugs from entering the country.
Does the President not only possess Humpty-Dumpty-like powers to define words, but also the power to act irrationally in addressing the perceived problem that he chooses to call a “national emergency”? That would be surprising.
The Legal Significance of Congressional Consideration and Action
Here, the country has debated, and Congress has considered. the question of a border wall at great length. Having duly considered the matter, both houses of Congress have enacted legislation addressing the topic.
Even if the President might be deemed to possess the powers of Humpty Dumpty in other circumstances, does his power extend to a situation where Congress has fully considered and resolved the matter, and he is unhappy with the result?
Trump Loyalty Versus Logic, Precedent, and Public Policy
A Trump loyalist would find a way to rule for Trump. But that would create a precedent for a fundamental change in our constitutional order.
I have no idea what Alito, Gorsuch, Kavanaugh, and Thomas will say on this topic. I do not believe that John Roberts will render a decision favoring the Cult of Trump.
Be we shall see what we shall see.
Legal Sabotage, Anyone?
And one more thing.
It will also be interesting to see how our new attorney general will handle the matter. Perhaps he, too, has joined the Cult of Trump. But, as I have said before, I doubt it.
One option for him in supervising the legal defense of the national emergency declaration would be to ensure that the legal briefs supporting Trump are so badly written as to sabotage the case. And, by the way, that could easily be done by employing language that Trump himself would love!
We shall see what we shall see.