Greg Sargent at the Washington Post reminds us that if Trump is willing to treat "not getting 100% of his wall money" as "a national emergency", giving him plenary powers to do whatever he wants, then he will repeatedly declare such "emergencies" whenever it suits him in the near future, and Republicans in Congress won't lift a finger lest they suffer political annihilation from Trump's howling base.
The bigger problem is that the Supreme Court made it unconstitutional to block such an action by the President with anything short of a two-thirds veto.
The basic problem we face right now in this regard was created by Congress. The post-Watergate National Emergencies Act, or NEA, places various constraints on the powers the president has when he declares a national emergency. For instance, it requires the president to say which other statute he is relying on to exercise the particular authority he plans to employ under his declared emergency.
The NEA also creates a mechanism by which Congress can terminate the emergency by passing a resolution through both houses doing that. The House is likely to pass such a resolution, but it’s unclear whether the Senate will do so. Even if the Senate did pass it, Trump would veto it anyway, though the House still should try this to get GOP senators on the record.
But the NEA doesn’t define what an emergency is, giving the president tremendous discretion to do that himself. The core question we now face is whether that discretion is limitless.
There will be lawsuits against Trump’s national emergency declaration. Protect Democracy and the Niskanen Center just announced that they will represent local border communities in such a lawsuit.
There are several basic ways of challenging Trump’s national emergency in court. The first is to challenge the idea that the statute Trump is invoking to find the precise power he wants to exercise actually does give him that power.
According to multiple reports, Trump is relying on a law that allows the defense secretary to “undertake military construction projects” that are “not otherwise authorized by law” if they are “necessary” to support “use of the armed forces.” This would reportedly allow him to tap some $3.5 billion in funds.
Robert Chesney, a law professor at the University of Texas at Austin, tells me that this is vulnerable to challenge, because it requires that this “use of the armed forces” is actually being employed in the emergency in question.
“This doesn’t work for just any emergency — it has to be an emergency in which use of the military is required,” Chesney said. Trump, of course, will claim that the military is in fact being used to counter his border emergency, since he sent in troops. But in this case, those troops are not actually repelling arriving migrants, so there’s no way to credibly argue that a wall is “necessary” to support what the military is actually doing.
“There’s a better chance than normal that a judge could second guess this,” Chesney said.
But perhaps the bigger question concerns the second way to challenge Trump’s national emergency: By arguing that there isn’t any national emergency, and that at some point, this has to matter.
The answer to that question is "not yet it doesn't, and it may never matter." Again, if Trump gets away with this, we're a healthy chunk of the way towards autocracy, and we're not coming back.