Trump to sign bill and declare National Emergency

Well all the media huffing and puffing (aka fake news stories) about how Republicans would join Democrats in decrying a national emergency was just that, huffing and puffing. Not only will the President likely declare a national emergency, but he will do so with the support of many GOP leaders, including Mitch McConnell.

So the idea that Congress (as WaPo, Politico, and NYT contended) would offer up a scathing rebuttal in the form of some sort of overwhelming bipartisan Congressional rebuke is sort of out the window. No doubt Democrats in the House will likely put together some sort of official House denouncement, but it probably will not have the widespread support that some on the left were hoping for.

That being said, many conservatives are not happy with the idea of Trump attempting to garner wall funding with the use of executive action, due to the fact that they believe it creates the wrong precedent. They are afraid that if he ultimately succeeds in pushing this through that it opens the door for future Democratic Presidents to use a similar action to declare a politically charged issue (like global warming) as a national emergency, and then spend trillions.

There are a couple of logical problems with this suggestion:

The most obvious is that national emergencies are unfunded declarations. Most of these declarations spend little or no money. They are policies that do things like restrict international trade with countries, restrict private business with certain entities, seize property, or block entrance into the United States for foreign nationals from hostile nations.

Even with the declaration of a national emergency, Presidents still have no authority to simply add money to the budget.

The statutory language allows for a President to find and use only otherwise unobligated funds. This only would allow the President to move money out of projects that are currently overfunded (such as a national disaster fund that is no longer necessary), or take it from budget areas that allow for non-specific funding (such as certain military construction money that has no specific purpose). In the grand scheme of things there is simply not a lot of cash to be found in this manner. Expert opinions vary, but most suggest that there is only a few billion dollars that could be reasonably allocated for this sort of purpose. While that would certainly accomplish the goals in this situation, it would certainly not allow for any sort of project that would require massive amounts of money (such as funding the Green New Deal).

Secondly, there is actually nothing that would prevent a Democratic President from striking first in this situation. Even if Trump decides against the national emergency, there is nothing to prevent the next President, or the next President after that, or the next President after that from declaring a national emergency over something like global warming.

Of course, this sort of declaration would likely go through the same legal battle that Trump will go through if/when he declares his emergency. While Congress put some very specific limits on what a President can do with a national emergency declaration, it did not provide much input on what sort of situations would fall under the umbrella of a national emergency.

In my humble opinion, the current makeup of the USSC would likely allow Trump to prevail with his national emergency under the logic that Congress did not distinguish what creates a national emergency, and because border security is something that specifically falls under the reign of the executive branch.

However, I think that the current USSC would have a much harder time favoring a declaration of national emergency that attempted to rebuild our economy and business make up because of global warming. In that case, the courts may fall back on the constitutional separation of powers to declare that such an emergency would require not just a declaration from the executive branch, but also specific funding from Congress. Not only because there would not be enough unobligated money to fund such an overhaul, but also because something like the Green New Deal seems to clearly fall under the authority of Congress (not the executive branch).