Common Defense: Too many emergencies

Just as it’s better to beg for forgiveness than ask for permission, the president gets the benefit of the doubt on what constitutes a national emergency

President Donald Trump addresses the nation about the widening coronavirus crisis from the Oval Office on March 11, 2020. (Doug Mills/The New York Times file photo/Pool)
President Donald Trump addresses the nation about the widening coronavirus crisis from the Oval Office on March 11, 2020. (Doug Mills/The New York Times file photo/Pool)
Posted June 8, 2020 at 10:32am

ANALYSIS — Like many other Americans in these trying times, I find myself exhausted living through two simultaneous national emergencies.

I’m speaking, of course, about the situation along our southern border with Mexico and the ability of Saudi Arabia to counter Iranian aggression in the Middle East.

Wait, did you think I meant something else?

Last year, President Donald Trump’s administration felt that both of these situations posed enough of a threat to the American way of life that it declared national emergencies in order to address them. In both cases, it was circumventing the express will of Congress.

In early 2019, the White House asked Congress for a $5.7 billion down payment to start construction on a border wall, prompting a funding battle that led to the longest government shutdown in U.S. history.

The White House came away with $1.38 billion, largely for border security. Congress, with its control of the purse strings, had rejected the need to build the politically divisive barrier, Trump’s campaign promises notwithstanding.

So in February 2019, the president declared a national emergency along the southern border, which allowed him to take $6.1 billion of the Pentagon’s fiscal 2020 budget and put it toward the wall.

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Similarly, in April 2019, a bipartisan majority in both chambers of Congress passed a joint resolution that would have ended U.S. military involvement with the Saudi-led coalition fighting in Yemen. The State Department subsequently invoked emergency authorities to send precision-guided munitions to Riyadh and Abu Dhabi as part of an $8.1 billion arms deal without a period of congressional review.

The Constitution does not grant the executive branch any emergency powers, so any special authorities to do so have been enacted by Congress, said Elizabeth Goitein, a co-director of the liberty and national security program at the Brennan Center for Justice.

Lawmakers have tried to anticipate circumstances that may require immediate action and, since acting fast is not always Congress’ strong suit, they have given the president limited authorities to use should various contingencies arise.

“Emergency powers were never meant to give the president the power to override Congress,” she said. “They were never meant to increase the president’s powers compared to Congress.”

But Congress avoided defining what constitutes a national emergency, she said. And in crafting checks and balances to the emergency authorities, it usually put the onus on Congress to vote to reject an executive branch action already taking place rather than affirming a course of action.

In other words, veto-proof majorities would have to say no to the president, rather than requiring simple majorities to approve the president’s plan. Despite bipartisan majorities in both chambers of Congress voting twice to terminate the national emergency on the southern border, it remains in effect, almost a year and a half later.

“In that respect, Congress really has itself to blame,” Goitein said.

When it comes to matters of foreign policy and national security, courts have been hesitant to challenge the judgment of the president, says Jeff Bialos, a partner at Eversheds Sutherland who was a Pentagon and State Department official during the Clinton administration. The executive branch, with entire departments dedicated to these fields, has expertise and knowledge that earns it a lot of deference.

In the laws that grant emergency authorities, “the president is given the authority to determine whether an emergency exists, and that’s a judgment that typically is not to be second-guessed,” he said.

In real terms, this can translate into the president declaring an emergency as he sees fit, and anyone who objects is stuck litigating after the fact. Just as it’s better to beg for forgiveness than to ask for permission, the president gets the benefit of the doubt when deciding what constitutes a national emergency.

The sale of precision-guided munitions to Saudi Arabia has been particularly controversial in recent years because those particular American weapons are used to perpetuate the war in Yemen, including the targeting of civilians, said Rachel Stohl, vice president for conventional defense at the Stimson Center, a Washington, D.C.-based think tank.

Congress was well-aware of Iran’s problematic conduct in the region when it voted to end U.S. military involvement in Yemen, where Iran and Saudi Arabia remain engaged in a proxy war, she said. To suddenly call it an emergency was a stretch.

“Those problems that existed led to a hold [on the proposed weapons sale] and congressional debate. Those conditions existed before, during and after the national emergency, and still exist today,” she said.

Last week, congressional Democrats said ousted State Department Inspector General Steve Linick told them he had an open investigation into the 2019 emergency declaration that enabled the Saudi arms deal. The Trump administration is considering another sale of $478 million worth of precision-guided munitions to Saudi Arabia, the New York Times reported recently.

It’s unclear if the administration will again declare an emergency to fast track the sale.

While Congress could have put stricter limits on when the executive branch could declare a national emergency and how long it could last, these restrictions weren’t needed when presidents acted in good faith, says Mieke Eoyang, who heads the national security program at the Third Way think tank.

“Presidents prior to this have been self-restrained, have appreciated the restraints and limitations that the founders themselves imbued in the Constitution and we have developed over American history,” she said. “When you have trust in the president, you don’t have to put a lot of limitations down, but we have never seen a president who has abused and strained the definitions of emergency to do things that are against the express direction of Congress so blatantly before.”

Last year’s issues were chronic, and the current circumstances are urgent, said Kori Schake, director of foreign and defense policy studies at the American Enterprise Institute, a conservative think tank. As a result, Trump comes off as the boy who cried wolf, she said.

“The president has used declarations of national emergencies to advance the electoral promises he made, and now we’re facing an actual national emergency,” Schake said. “He said those were national emergencies to advance his political platform. But when faced with a real national emergency, he’s making incendiary statements and it’s hard to take him seriously."

Tragically, because of the coronavirus outbreak and civil unrest following the death of George Floyd, we know what a real national emergency looks like. More than 110,000 Americans have already died, millions have been forced to stay home from work and school, and millions of others have lost their jobs and livelihoods.

But the hardships and discord the nation is experiencing now belie the Trump administration’s previous misuse of emergency declarations as an expedient means to a political end. And if Congress let him get away with exercising such poor judgment in bogus emergencies, should we really be surprised that he was so ill-prepared when the real thing came along?

Andrew Clevenger is a CQ Roll Call defense reporter.