Emergency!

Is Donald Trump’s national emergency actually an emergency? Let’s take an unemotional look at that.

Trump has declared a national emergency to get access to funds originally designated for other purposes so he can build his border wall. There are any number of analyses of whether this is legal, and certainly congressional Democrats and others (like state Attorneys General) are now mounting legal challenges.

But I’m interested in looking at whether this makes sense from the perspective of the way the U.S. government is supposed to work — and based on the way people normally think of words like “emergency.”

I think about my relationship with my wife, for example. If a tree fell on our house and I had to spend $1,000 to get it taken care of before further damage could happen, I would not need to ask permission and discuss it. The same applies if one of our children needed immediate medical attention and there would be a cost for, say, putting them in an ambulance and going to the emergency room.

On the other hand, if I really felt the house needed painting, even if it was an obvious need, I would need to talk that over with my wife. If she wanted to make a necessary $2,000 car repair, I’d expect a conversation.

If I cut myself at home and then need to buy a bandage, that’s urgent, but it’s not an emergency, because the expenditure is too small to require a conversation.

These situations lead to a common-sense definition of an emergency — a situation in which there’s an immediate need for a decision that’s significant to both of us. If there’s time to talk, it’s not an emergency. If it’s a small decision, it’s not an emergency. It has to be big and urgent. Those are the only situations where a big decision doesn’t require a conversation and an agreement.

Is this how emergencies work in the federal government?

The analogous situation applies in the U.S. government. Congress is supposed to fund things and make laws, and the president and the executive branch are supposed to carry those priorities out.

Obviously, the federal government doesn’t have to check with the Congress every time they make a decision. The Justice Department doesn’t call senators every time they want to prosecute someone, and there’s no need for the IRS to get my congresswoman’s permission to audit my taxes. In those cases, the Congress has explicitly given the executive branch the permission and the responsibility to do its job.

But sometimes the government has to do big things without getting permission. That’s where national emergencies come in. Since the 1976 National Emergencies Act, those cases have one thing in common: they are supposed to be urgent responses to threats to the country, and there is no time to gather congressional approval.

The national emergencies declared since 1976 fall into these categories:

• Sanctions. Presidents including Carter, Reagan, George W. Bush, and Obama imposed sanctions 33 times to address foreign threats. Most, but not all, of those cases involved responses to military and terrorist threats like 9/11.
• Trade. Reagan, Clinton, and both Bushes imposed export controls and blocked other transactions eight times.
• Treaty- and arms-related. George H.W. Bush committed to destroy chemical and biological weapons related to a treaty before it was ratified; Clinton asserted control over proliferation of weapons of mass destruction.
• Maritime and military. Clinton regulated movement of maritime vessels in response to a Cuban attack on civilian aircraft. George W. Bush called up reservists and retired military after 9/11 and protected the development fund for Iraq from legal interference in 2003.
• Public Health. Obama declared an emergency to prepare for an H1N1 flu epidemic.

While many of these emergencies were declared in the wake of imminent threats (analogous to the tree falling on my house), many were not. It’s clear from this list that presidents sometimes use national emergency declarations to deal with foreign policy situations that require immediate action, but where Congress is unable to act.

I was particularly interested in Reagan’s executive order limiting trade and other transactions with South Africa. This was an ongoing situation, not an imminent threat. Reagan’s sanctions were an attempt to use his own authority rather than submit to the bill being debated in Congress, which he felt was too harsh. This isn’t exactly analogous to what Trump has done, but it does show that presidents sometimes use national emergency declarations to attempt to impose their own policy on situations that are under debate in Congress. I’m sure that Trump’s lawyers will cite this as precedent.

What’s unique about Trump’s declaration? It falls under all three of these non-emergency justifications:

• The threat is ongoing, not in response to a particular event like an attack or an epidemic.
• The response to the threat was under debate in Congress, which passed a policy to address it — but one the president felt was inadequate.
• The declaration of the national emergency proposes to use funds which Congress originally appropriated for other purposes.

The historical record shows many examples of the first condition, and one example of the second (Reagan’s South Africa sanctions), but no examples of the third. That’s what makes it new, unprecedented, and not really an emergency under any way to stretch the definition of that term.

What else is a national emergency?

Lost of things are happening now that would seem to demand immediate action. These include the threat of global warming, the opioid epidemic, out-of-control health care costs, and the increasing rash of mass shootings.

These are huge, ongoing problems. But the solutions to these problem are under continual debate in the Congress. Our system of government specifies that it is Congress’s job to define priorities and allocate funds. It does not allow presidents to do so except when an imminent (not ongoing) threat demands immediate action and there is no time for debate.

As much as I’d like the government to solve these problems, I’m not ready to turn my president into a monarch to fix them. I’d like laws passed and moneys allocated based on what the senators and representatives we elected decide is best, not based on what promises a president made during the campaign.

It’s clear that presidents have used national emergency declarations in non-emergency situations, but rarely to evade Congress’s intent, and never to move funds around. Because I don’t want to live in a dictatorship, I’d like to keep it that way.