President Donald Trump insisted Thursday that he has the “absolute right” to declare a national emergency if Democrats aren’t willing to give him $5.7 billion to build 250 or so miles of physical border barriers.
But it’s not clear that even his own advisers — the ones who are pushing him to declare an emergency — agree.
In fact, it sure looks like some in the Trump administration see the emergency declaration as appealing even though they assume it’s going to get held up in court.
Republicans not named Donald Trump are getting very antsy about the continued government shutdown, as 800,000 federal employees face their first missed paycheck on Friday. And some of them have apparently decided that an emergency declaration is a good way to end the shutdown — without taking a stand on whether it’s actually a good idea, or even constitutional.
That’s how the Wall Street Journal (in an article by Kristina Peterson, Rebecca Ballhaus, and Natalie Andrews) put it in a Wednesday article, at least:
As a possible way out of the shutdown, Mr. Trump’s advisers in recent weeks have suggested that the president could declare a national emergency to fund the border wall and agree to sign a spending bill without such a provision. While the declaration likely would get tied up in litigation, Mr. Trump would be able to tell supporters he did everything he could to build the wall, one of his top campaign pledges in the 2016 presidential campaign.
The WSJ’s Peter Nicholas even suggested on Twitter that the plan would be to issue the emergency declaration, get the court injunction, and then reopen the government:
White House officials discussing a potential exit ramp in the shutdown fight: Trump declares national emergency; courts intervene and stay the order; he and Congress re-open the gov't while case is litigated. https://t.co/e1wrN0Tii9— Peter Nicholas (@PeterWSJ) January 9, 2019
Obviously, when the government would actually reopen depends on which order things go in. But either way, White House officials reportedly believe that the right move, for political reasons, is to issue a policy they do not actually expect to see go into effect.
That is a terrible idea.
The Trump administration has started assuming that its policy moves will get held up in court
In school, students are taught about the three branches of the federal government: The legislative branch makes the laws; the executive branch enforces the laws; and the judicial branch interprets the laws.
But over the two years of the Trump administration, a different pattern has emerged: The executive branch makes a policy (and blames Congress for forcing it to take action); a federal judge (usually on the West Coast) puts the policy on hold; and the Supreme Court ultimately weighs whether to allow the policy to go into effect.
That’s what has happened with everything from the travel ban (versions one, two, and three) to Trump’s attempt to ban openly transgender people from active service in the armed forces. On immigration (where this dynamic has been most pronounced), it sometimes seems like it’s difficult to even call public attention to a new Trump policy anymore because people assume it’s going to get stopped by the courts.
And the Trump administration has started making that assumption, too.
It’s not unreasonable; it genuinely does appear that some federal judges are more skeptical that the Trump administration has acted in a constitutional manner than they would be for a different executive branch (which doesn’t mean the skepticism is necessarily unfair).
The Fourth Circuit Court of Appeals, in Maryland, ruled against the third version of Trump’s travel ban in part because it thought Trump’s tweets and campaign statements provided evidence of his anti-Muslim animus. (The Supreme Court overruled the Fourth Circuit.)
Trump’s racist comments about “shithole countries” encouraged a judge to stop him from ending Temporary Protected Status for hundreds of thousands of Central Americans and Haitians. In both cases, the judges were willing to exercise more scrutiny of an executive branch policy than they normally would because of the evidence of unconstitutional bias provided by the loose-cannon president.
But the relentless cycle of policy-lawsuit-injunction-appeal can sometimes seem like it’s led to an attitude of learned helplessness: Even as the administration is developing a policy, the people working on it assume it’s going to get held up in court.
On the record, as a policy is being developed and rolled out, no one is willing to argue directly that a Northern District of California judge will uphold it; on deep background and off the record, people who can’t or won’t be quoted joke about how long the policy will be in effect before such a judge gets his hands on it.
Some of the judicial fatalists in the Trump administration are the ones pushing for legally aggressive policy. During the debate over the asylum ban (to take one example), hardliners assumed that the ban would be stopped by a judge but argued that it would ultimately be upheld by the Supreme Court. The proposed emergency declaration, though, appears to be getting floated even without hope for an eventual victory — on the assumption that it’s good politics for Trump to rage against the “liberal Ninth Circuit” as he always does when they smack him down.
If anything, though, it looks like the Trump administration is getting overly fatalistic, assuming that everything they try will get held up in court. That’s not necessarily the case, and it’s certainly not an incentive to make good policy.
Lawsuits don’t come out of nowhere — and they’re rarely ready to go the minute a policy is enacted
The discussion of the emergency declaration as a way out of the shutdown makes it seem like an escape lever that Trump can pull at any time — with the lever triggering an automatic chain reaction that ends with a California judge stamping “ENJOINED” on a piece of paper.
That’s not how it works at all. Both making policies and suing over them takes time.
Trump can’t simply say the words “emergency declaration” and trigger a lawsuit. He has to declare which of the 100-plus emergency powers given to the president he’s invoking — not just because that’s how the law works, but because he has to identify which pools of emergency money he wants to raid to pay for the wall. (Not that it’s clear there’s even enough money in any of the applicable funds to get to $5.7 billion.)
And the emergency declaration doesn’t get automatically mailed to the Ninth Circuit for approval or rejection. Lawyers have to digest the policy and devise a strategy for suing over it: who will take the lead, what the venue will be, who the plaintiffs will be, what grounds they’ll use. Then they have to draft a complaint. And if they want a ruling as quickly as possible, they’ll have to draft a separate request for an injunction or a temporary restraining order — and work harder to persuade the judge not only that they’re right and the administration is wrong, but that it’s worth throwing out the typical court schedule for.
Even a policy that seems obviously unconstitutional to a Trump critic might not be easily sued over — despite the administration’s fatalism.
Take the asylum ban. From the moment the official ban was issued on a Friday morning, the clock was ticking on the administration’s defeat in court. When the American Civil Liberties Union and other groups filed a lawsuit Friday afternoon, it seemed unlikely that the ban would survive the weekend. I heard some secondhand gossip in which an administration staffer predicted it would be held up before midnight Friday — the moment at which it was supposed to go into effect.
But the ACLU didn’t even ask for an emergency order before the ban went into effect. It let a three-day weekend pass before asking to expedite the case. In the end, the ban was in effect for 11 days — not very long, but a lot longer than many people (inside and outside the administration) predicted.
That was a case in which the litigators had a head start — the contours of the policy had been leaked to several reporters in the weeks and days before the ban was issued, and the administration itself explained how the ban would work the day before it was signed.
Without knowing anything about which specific emergency powers Trump might plan to use, no litigator could start preparing for a lawsuit now — and even if Trump declared an emergency tomorrow, it might take days or weeks for a lawsuit to get filed.
If you fight a court case, you cannot guarantee you will lose
By treating an emergency declaration as a way to reopen the government, rather than as an actual policy that will be in effect barring a judicial injunction, the Trump administration risks the worst of both worlds: a policy they carelessly slapped together that they and everyone else then have to live with for a very long time.
In theory, trying to build the most court-proof policy possible is supposed to lead policymakers to be careful. But when they think there’s no such thing as court-proof, that backstop doesn’t exist.
It’s common sense that if you have very little time to issue a first version of something, but assume that the first version won’t actually go into effect, you’ll think you have a bit more time to work out the details. That’s not laziness; it’s a logical reaction to being told to develop policies on a compressed timeline.
But even under this administration, and given the predilections of some federal judges, it is impossible to guarantee that a judge wouldn’t rule in the administration’s favor. That’s especially true on issues of national security, where the judiciary has a practice of deferring to the administration and not asking the executive branch to prove that the policy is needed.
The only way to guarantee that a judge will block Trump’s declaration of national emergency is to deliberately devise it so shoddily that it would be easy to litigate — and then tell Justice Department attorneys not to do their job of trying as hard as possible to defend it. If the administration puts up the fight that is supposed to make Trump look good to his base — the fight that DOJ lawyers are literally paid to do, and make their careers doing — there is a chance they will prevail.
If the administration actually thinks it is both constitutional and a good idea on the merits to declare a national emergency over Democrats’ unwillingness to pay billions of dollars for a border barrier, that possibility won’t worry them.
But if they see the emergency declaration as a politically convenient tactic with no legal or policy consequences, they really, really shouldn’t issue one. Because you shouldn’t issue a policy if you aren’t 100 percent comfortable with its consequences.