Following President Trump’s declaration of a national emergency in order to reallocate money for a border wall that Congress has refused to fund, House Speaker Nancy Pelosi warned Republicans that “a Democratic president can declare emergencies, as well.” She suggested that a future Democratic president could enact gun control initiatives by calling a national emergency over gun violence. Other Democrats, such as Rep. Ilhan Omar, have floated similar ideas about climate change. “So, the precedent that the president is setting here is something that should be met with great unease and dismay by the Republicans,” Pelosi cautioned, a sentiment since repeated by those of various political leanings.
Republicans are not heeding the warning. Despite a few dissenting voices and much performative handwringing, most Republicans are falling in line behind the president. Though initially discouraging the president from issuing the decree, Senate Majority Leader Mitch McConnell now supports the move as well.
This is no political miscalculation on their part. Congressional Republicans would not happily support the president’s usurpation of constitutional powers reserved for Congress were it not in their own interest. They understand the political calculus at play. While Pelosi is correct that future Democratic presidents can declare emergencies, the implication that they could just as easily bypass Congress isn’t true.
The Courts Are Stacked
There are only two ways to block a president’s declaration of a national emergency through institutional means, one legislative and the other judicial. Either Congress passes a joint resolution to rescind the state of emergency or the courts label the declaration unconstitutional. In the case of Trump and the border wall, there are probably not enough Republican defectors to build a veto-proof supermajority, which ensures the matter will be decided in the courts. A coalition of 16 states is already suing the Trump administration. Landowners in Texas and environmental groups are starting to file suit. The House, in addition to putting forward a resolution to end the emergency decree, could also sue the Trump administration for using the emergency to bypass the “power of the purse” granted exclusively to Congress under the Constitution.
Any future Democratic president declaring a faux emergency would face similar legal challenges. However, they will have to fight them in a far more hostile judicial environment. The Republican Party has exploited its massive structural advantages in the Senate, as well as the Electoral College, to stack the federal judiciary with conservative judges.
The reshaping of the judiciary has been a decade in the making. McConnell used an obstructionist Senate minority to block Obama judicial appointments in an unprecedented manner until frustrated Senate Democrats took away the filibuster. After winning back the Senate in 2014, a Republican legislative majority of 54 senators representing only 46 percent of Americans all but shut down Obama’s judicial appointments, most famously denying Merrick Garland even the courtesy of a confirmation hearing, and Senate Democrats representing an actual majority of the American public were powerless to stop them.
The current Supreme Court conservative majority that will ultimately decide the fate of Trump’s national emergency is best described as a “minority-majority” bloc. Four of the five conservative justices now on the bench were appointed by presidents that, at least initially, lost the popular vote. Both Neil Gorsuch and Brett Kavanaugh were confirmed by senators that, even with a few Democratic defectors crossing the aisle, represented a distinct minority of the citizenry. Clarence Thomas and Samuel Alito were also confirmed by senators that collectively received fewer votes than the opposition.
As Carrie Leonetti wrote in the Harvard Journal on Legislation, “The federal courts were intended as anti-democratic structures. Their interpretations of the federal constitution were supposed to be a counterweight to the excesses of the other two “democratic” branches. The problem with this system is that the other two branches of government are not democratic.” Rather than placing a constitutional check on majoritarianism, the federal courts are shoring up Republican minority rule.
The minoritarian nature of the federal judiciary means that even popular Democratic presidents — and, unlike Republicans, they generally must be popular to win the Electoral College — will find themselves stymied in the courts, especially when violating norms regarding the separation of powers as Trump is doing. If Republicans prevail in the courts, it will be a case of national emergencies for me, but not for thee.
There is little that liberals and progressives can do to level the playing field in the judiciary as long as votes cast in populous states translate so poorly into actual Senate seats, to say nothing of Electoral College victories. A 2018 “blue wave” election in which Democrats won the House by a popular vote margin of 8.6 percent and outperformed the partisan lean in most of the states with Senate seats up for grabs wasn’t enough to stop Republicans from picking up two seats.
Republicans now have at least two more years to shape the judiciary, which will have a lasting effect for decades, especially if Trump appoints another justice or two. The 2020 Senate map gives Democrats little hope of capturing the Senate even with back-to-back wave election cycles. If they fail, given the worsening malapportionment of the Senate and the increasingly partisan nature of national elections, a compelling case could be made that, short of major party realignment, we won’t see a liberal or progressive majority on the Supreme Court ever again.
Given this reality, the support for President Trump’s national emergency among congressional Republicans, far from being shortsighted, makes strategic sense. The courts either allow Trump to reappropriate the money to pay for his wall unilaterally or not. If they do, Trump gets his border wall. If not, no harm, no foul. Either outcome has limited bearing on how highly partisan conservative courts will later rule on a Democratic president attempting the same thing. Courts tend to rule as narrowly as possible, which would allow plenty of berth for ruling differently on future cases. There’s also nothing stopping a future Supreme Court with an even more conservative makeup from overturning any precedent. There’s not even anything stopping the exact same Court from overturning its own precedent to thwart a Democratic president.
The Constitution Will Not Save Us
The constitutionality of the president calling a national emergency to make an “end run” around Congress has been in debate ever since Trump started toying with the idea. Though the Appropriations Clause in the Constitution unequivocally declares Congress the sole arbiter on how public money is spent, presidents have always exercised executive discretion in implementing law and policy. Presidents have also always been able to exercise extraordinary emergency powers by declaring a crisis. While some rightly criticize the 1976 National Emergencies Act for allowing the president too many easily abused powers during a self-declared crisis, the legislation was actually an attempt to formalize and constrain the president’s already broad emergency powers.
The limits of presidential emergency powers are not, and will never be, settled by law. Our presidential system of governance, which clumsily separates legislative and executive powers into two branches, all but guarantees a push and pull between Congress and the president as they test the outer boundaries of these powers whenever the government is divided. There is no “true” answer to whether Trump’s decree is constitutional. Constitutional courts exist because someone has to decide whether laws or policies violate the constitution. The U.S. Constitution is notoriously vague on almost everything, and the meaning and boundaries of the “executive Power” vested in the president under Article II are no exception. Ultimately, the courts are the referees here. Sometimes they side with the president in these matters, sometimes with Congress.
But courts are not impartial. The partisan nature of the courts is such a banal statement of fact that counterarguments don’t deserve rebuttal. Ultimately, the Constitution says what the courts say it does, especially on the finer details, and we can generally expect rulings to be partisan with some secondary consideration given to maintaining the courts’ fragile legitimacy.
Given the minoritarian makeup of the courts, especially the Supreme Court, that legitimacy is already in question. Arguing over the constitutionality of Trump’s national emergency declaration, while necessary to mounting a legal battle against the Trump administration, ignores the deficiencies of the U.S. Constitution and the wider political context that, together, make the move feasible. Trump’s national emergency is not a presidential power grab, as often described, so much as a partisan power grab. Having lost control of the House of Representatives in the midterms, Republicans — not just Trump — are looking to push forward an unpopular agenda through the federal government’s less democratic institutions where they enjoy massive structural and electoral advantages. This is just another case of Republicans playing hardball with a constitution that advantages them at every level. One can draw a line straight from McConnell’s obstruction of Obama’s judicial appointees through the stonewalling of Merrick Garland’s nomination to congressional Republicans’ willingness to support Trump’s abuse of emergency powers. Republicans’ ability to stack the courts allows them to abuse presidential emergency powers with little fear of Democrats doing the same.
None of this is to suggest that congressional Republicans planned for Trump to make this move. His choice to call a national emergency to unilaterally fulfill a xenophobic and unpopular campaign promise is his own. This is probably not a hill that most congressional Republicans want to die on or they would have funded the wall when they controlled the entire federal government. But they won’t die on this hill — not now, not later. They are going to get away with this national emergency just as they got away with stealing a Supreme Court seat. Maybe they won’t prevail in the courts this time, but they’ll get away with the attempt. Smart money is on them trying again and again. The Republican Party has repeatedly shown its openness to anti-democratic minority rule as long as it means advancing their (unpopular) agenda.
The United States is not an autocracy, however much Trump might idolize dictators and autocrats, but we are a nation with dangerously undemocratic and even anti-democratic institutions. If Trump wins this fight, it will not be as an autocrat. The winner will be a Republican Party that once again pushes forward a policy win against the popular will of the people, this time mere months after being severely rebuked in national elections.
That we are, yet again, arguing over whether the subversion of popular will on a policy matter is technically constitutional is a reminder that the U.S. Constitution, incapable of preserving American democracy, actually impinges on it. That’s not something that progressives and the American people at large are ever going to be able to address through constitutional courts so heavily stacked through minoritarian means.