Statement of Common Cause President Karen Hobert Flynn
Americans will not tolerate a President who abuses the powers of his office. Congress must act swiftly and decisively to check any imagined emergency that President Trump is attempting to use as a pretext to bypass the legislative branch of government and build an unnecessary wall along our border with Mexico.
President Trump has reportedly reached a spending deal with Congress to avert a second government shutdown this year, but the deal does not include the full $5.7 billion he wants to build an unnecessary wall along our border with Mexico. The White House has now announced that President Trump plans to disregard the constitutionally-required budgeting process and declare a national emergency in an attempt to build the wall, simply to make good on a call-and-response line he used during his campaign rallies – part and parcel with his demagoguery of immigrants.
Congress cannot let this abuse of the National Emergencies Act stand. Ironically, the Act itself is a post-Watergate reform, enacted to reassert Congress’ constitutional role in checking and safeguarding against authoritarian abuses of power.
Congress must put the good of the country before the good of the party and check this power grab by President Trump. In the last Congress, the Republican majorities refused to curb a long list of abuses by Trump and it has only served to embolden him. This manufactured “emergency” must be stopped in its tracks by Congress. And if Senate Majority Leader McConnell and his fellow Republicans in the Senate refuse to do so then members must turn to the courts to halt this flagrant abuse of presidential emergency powers.
The legal rationale likely to be used by the White House to justify its “state of emergency” wall construction is deeply flawed. Under the statute granting a President authority to initiate military construction projects in the event of a national emergency, the emergency must be one that necessitates military action and only then can a construction project “necessary to support such use of the armed forces” be undertaken. Any White House reliance on this provision would turn the statute on its head – the only need for the military action here is to build the construction project itself.
Further, the Posse Comitatus Act, dating to reconstruction in the wake of the Civil War, prohibits military engagement in law enforcement activities with respect to civilians (including immigrants) unless Congress specifically authorizes it. So in effect, the military is prohibited by federal law from engaging in the only activity that could necessitate military construction of a border wall – enforcement of immigration laws.
The legal justification likely to be used by the White House is deeply flawed, but the fact remains that President Trump is using that unsound legal theory in order to bypass Congress, which refuses to waste billions of dollars on an ineffective wall simply to please the President. Congress cannot sit idly by while the President undermines its authority as a coequal branch of government – an authority granted in the United States Constitution to prevent authoritarian rule. History will not be kind to any member of Congress who allows the President to undermine the foundations of our democracy through the blatant misuse of the Emergency Powers Act.