No president, before Donald Trump, declared a national emergency unless he enjoyed widespread public support for it, even when the declaration also stoked significant opposition. That is the key difference between what the president dictated last week and his what his predecessors did. The legal differences are more muddled.
Those who predict Trump's action will fail in the courts may want to tone that talk down. We may all learn sobering lessons soon about how much authority Congress has surrendered to presidents, especially since the terrorist attacks of Sept. 11, 2001.
The president announced an emergency to divert billions of taxpayer dollars to build miles of border wall. About three in 10 American's supported the idea of such a move before the president made it, polls showed.
Budgeting billions for a wall is not so popular once the time comes to sign a check. An end-run around Congress after the president miserably failed to get a big appropriation proved even more unpopular. The president did it anyway. This kind of last-gasp throw comes more from a bruised ego than calculation.
Compare this move with any of the 28 emergency declarations still in force from previous presidents. Start with Jimmy Carter's 1979 declaration against Iran. The gamut runs from blocking assets of Colombian drug traffickers to action concerning a failed coup in Burundi. None of these raised much of a stink although many were criticized. The ones that did not receive widespread public support met with widespread public indifference, which functionally amounts to the same thing.
Something somewhat similar did stir a major blowback: DACA. Then-president Barack Obama used an executive order -- not an emergency declaration -- to create the Deferred Action for Childhood Arrivals program. This happened after the U.S. House failed to take up a popular Senate bill. That bill would have protected people whose parents illegally brought them, as children, into the country.
There is very little public support for rounding up bunches of kids who grew up here and deporting them to a country they cannot remember. So Obama created DACA. Vastly oversimplified, DACA declares the government will not round up bunches of kids who grew up here and deport them. It offers them protections. The matter has been in court ever since. Trump rescinded the policy. That went to court, too.
DACA simultaneously recognized reality, acted humanly -- and threw a well-aimed political hardball. It weakened the best leverage the president's opposition had in the stalemate on a bigger immigration deal. Whatever the morality or lack of it of using DACA kids as hostages, they make good hostages. DACA tried to free them.
A politician can get away with a lot when he has public support. DACA certainly has its critics. It has meaningful legal arguments against it. But it does something most of the U.S. public wants. Trump's wall declaration does not.
Conservative critics of Trump's wall order say a future Democratic president could declare an emergency for climate issues, mass shootings or any number of things. Yes, a future Democratic president could -- on issues that enjoy about twice the level of popular support as Trump's wall.
Trump's precedent is dangerous, even though it grew out of the license given for safe things.
"My initial assessment is that what President Trump announced is legal. Whether or not it should be legal is a different matter," said Sen. Mike Lee, R-Utah. "Congress has been ceding far too much power to the executive branch for decades. We should use this moment as an opportunity to start taking that power back." He nails it.
A conservative writer, James Wallner, hit the nail even harder: "If the situation at the border is really a national emergency, then why did Trump wait months, if not years, to act? Why didn't Congress act? This is a transparent workaround for all involved. Trump works around Congress. Congress works around its responsibilities."
There is another aspect. Trump's wall will cost billions of dollars. DACA does not.
Bypassing Congress to impose a multi-billion dollar project most of the citizenry supports would still be an abuse of power. Imposing a multi-billion dollar project a large majority of the citizenry opposes is the act of a despot.
Commentary on 02/23/2019