Blame Trump, Not the U.S. Code, for His Abuse of Emergency Authority

Our Laws Could Be Better, But Trump Is Breaking the Ones We Have

It began in earnest with President Donald Trump’s invocation of the National Emergencies Act in an effort to grab money to build a border wall. It reemerged with Trump’s reference last week to the International Emergency Economic Powers Act as a purported legal basis for his threat to order American companies to cease doing business in China. All told, it’s becoming fashionable to blame the U.S. Code—and, in particular, federal laws setting out a president’s authorities to address national emergencies—for giving Trump the legal leeway to take foolish steps like pouring resources into a border wall or “order[ing]” U.S. companies out of China. It is a serious misstep, however, for commentators to suggest that the President is acting within the four corners of these laws. He isn’t.

These laws—like so many laws—are imperfect. But the primary fault here lies not with the law books but with President Trump. Our laws of course could be better, but Trump’s breaking the ones we already have. What’s more, those laws were designed not to expand presidents’ emergency authority but to restrain it. So blaming them for Trump’s excesses fails to recognize that fewer checks on executive power that would exist in their absence. There’s plenty of work ahead to reform federal statutes in light of lessons learned from the Trump era. Yet that task ahead shouldn’t distract us from the fierce urgency of now: calling out Trump’s actions as unlawful and, moreover, reining them in.

What the emergency laws say

Whatever one thinks of the laws currently on the books, Trump is breaking them. Recall the proclamation that Trump issued in February 2019 to declare “a national emergency concerning the southern border of the United States.” It recounted a handful of longstanding facts concerning the southern border, then identified only a single recent change at the border: “recent years have seen sharp increases in the number of family units entering and seeking entry to the United States.” It then proceeded to “declare that a national emergency exists at the southern border of the United States.” An increase in families entering the United States simply isn’t a “national emergency” of the type contemplated by the National Emergencies Act (NEA). It may present a hard policy challenge, but many things do. For President Trump to insist that it’s a “national emergency” represents not statutory ambiguity but presidential lawlessness. And, indeed, we all know why President Trump really invoked the NEA: because he failed to convince Congress to approve his wall funding.

The same form of lawlessness is evident in Trump’s recent reference to the International Emergency Economic Powers Act (IEEPA). That law specifies that a national emergency can be declared “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” Trump’s escalation of a self-initiated trade war with China and inability to cut whatever deal might be necessary to end it are hardly the type of threat described by the IEEPA’s text. Indeed, to whatever extent we’re now facing an “unusual . . . threat . . . to the . . . economy of the United States,” its source appears to be not “outside the United States” but inside the Oval Office. If Trump in fact invokes the IEEPA to restrict American commercial activity in China, he’ll be replicating his treatment of the NEA not in using federal law but in violating federal law.

It’s true that the text of both statutes could be much clearer in defining what qualifies as an emergency and in specifying what powers a president can utilize to address one. But those who blame these laws by claiming that they allow Trump to take these actions overlook Trump’s transgression of their text as written and, moreover, obscure the baseline we had before they were enacted. It wasn’t an absence of presidential invocations of emergency authority; it was, to the contrary, more of a free-for-all.

Understanding the historical baseline

A House Report on the NEA emphasized that the proposed law was intended to restrain presidents’ invocation of national emergencies, not aggrandize it. The report noted that “there has been an emergency in one form or another for the last 43 years,” adding: “The history of continued and almost routine utilization of such emergency authorities for years after the original crisis has passed . . . serves only to emphasize the fact that there is an urgent need to provide adequate laws to meet our present day needs.” And a Senate report made clear the NEA’s purpose: “Enactment of this legislation would … insure that the extraordinary powers which now reside in the hands of the Chief Executive … could be utilized only when emergencies actually exist.” The genealogy of the IEEPA is similar, with its enactment intended, as one commentator has rightly summarized, “to restrict the president’s powers to declare an indefinite emergency during peacetime.”

So it’s critical to remember the baseline against which emergency laws like the NEA and the IEEPA were enacted: essentially uninhibited presidential invocation of national emergencies and executive branch actions in response. That’s what made these laws’ introduction of new requirements—such as the specification of particular emergencies, the expiration of old ones, the demand that new ones be recertified periodically or expire, and the reporting to Congress of each new emergency declared—collectively a step forward in reining in the exercise of presidential emergency authority.

That doesn’t make these laws perfect, of course—they’re not. But, without them, Trump would be declaring or threatening to declare bogus national emergencies with fewer checks, not more. That’s why his abuse of the laws should be blamed, first and foremost, on Trump, not on the laws themselves.

Invigorating existing checks on abuse of emergency laws

Recognition of the laws’ history is vital to ensuring that the checks that do exist force this President into compliance with the law as written. One such check—executive branch lawyers demanding adherence to federal law—seems to have failed already (unless they were overruled by the President himself). That apparent failure can be seen in Trump’s proclamation under the NEA and in Treasury Secretary Steven Mnuchin and White House economic director Larry Kudlow’s recent defense of the President’s tweet about the IEEPA. Despite the apparent failure in these instances, executive branch lawyers remain a meaningful check when the executive branch is being run more responsibly. (I say that having witnessed firsthand the rigor of internal executive branch discussions of national security legal issues, at least in a different era.)

A second check—Congress—offered a powerful rejection of Trump’s declaration of an emergency at the southern border when Republicans joined Democrats in ensuring that both houses of Congress voted, as the NEA provides, to reject Trump’s declaration and thus force the first veto of his presidency. Alas, this check went only so far; and it was disappointing when the effort to override Trump’s veto by the required super-majority fell short in the House.

Now, it’s up to a third check—the courts—to reject Trump’s overreach, with lawsuits currently pending around the country. One hopes that the courts will indeed do so—and that, if Trump makes good on his threat to abuse IEEPA in the context of his trade war with China, this time Congress will find the votes to overcome even another veto.

And it’s worth bearing in mind that a fourth check—the reaction of the financial markets to an attempt to cut off American commercial activity in China—might bolster bipartisan resistance to Trump on the Hill.

But all four of these checks are more likely to succeed if we place the blame for Trump’s lawlessness where it belongs: on him, not the statute books. The contrary insistence that Trump’s actions and threatened actions are permitted by these laws gives executive branch lawyers reasons to indulge him, Congress an excuse not to rebuff him, courts a justification to rule for him, and even markets a basis not to react to him as strongly as they might otherwise. That’s all quite counterproductive—not to mention counter to the text and history of these laws.

All four of these checks are more likely to succeed if we place the blame for Trump’s lawlessness where it belongs: on him, not the statute books.

* * *

In a wide range of areas, the excesses of the Trump era demand careful reevaluation of existing laws to ensure our country emerges from this experience both wiser and stronger. Indeed, here at Just Security, I’ve offered some specific suggestions for legislative improvements in the context of election security based on what we’ve learned from the experience with Trump so far. Just as post-Watergate legislative reforms generally left our democracy on firmer footing, post-Trump statutory updates are vital.

But that shouldn’t distract us from what’s happening today, under the law as we have it: President Trump is declaring bogus emergencies and then claiming access to authorities to which he’s not entitled. It’s a mistake to suggest that existing emergency statutes provide a lawful basis for Trump to invoke them as he has done and threatened to do. Yes, the laws could be written better to make it clearer that this President has overstepped them, and in that sense their current form has given Trump some political room to cloak his abuse of the law as acts in service of it. So let’s improve our laws down the road. But don’t blame them for their own transgression right now. That’s the fault not of the U.S. Code so much as it is of Donald Trump.

Photo credit: Saul Loeb/AFP/Getty Images

 

About the Author(s)

Joshua Geltzer

Executive Editor. Founding Executive Director of the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Legal Advisor to the National Security Council, and former Counsel to the Assistant Attorney General for National Security at the Department of Justice. Follow him on Twitter (@jgeltzer).