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What Someone Needs to Explain to Trump About ‘National Emergencies’

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It’s not just the likelihood that he will lose in court—it’s how he will lose that matters.
When the recently arrived White House counsel, Pat Cipollone, took up his post, he could have had no illusions that the president whom he served would make his professional life easy. Just weeks into the job, he has been asked to provide legal support for the president’s declaration of a national emergency on the U. S.-Mexico border that would enable him to divert funds to the payment of “a wall.”
We don’t yet know whether the president is committed to this course. He omitted any mention of an emergency declaration from his Oval Office address on the border “crisis” on Tuesday. Then, after an unsuccessful meeting with the Democratic leadership to resolve the wall and government shutdown issues, the president returned to the possibility of assuming emergency powers, declaring that they were available to him as his “absolute right.” On Thursday morning, Trump put the odds of his taking this action at “maybe definitely.” He told reporters that his lawyers were “100 percent” behind his exercise of this “absolute right.”
It is possible, but exceedingly unlikely that Cipollone is that optimistic about the president’s chances of prevailing on this issue or so eager to please that he would give this or any other controversial legal position that Trump favors a “100 percent” seal of approval. A White House counsel must develop his recommendations from the particular perspective as an institutional lawyer—as counsel to the president and not personal consigliere to Donald Trump. He certainly must take the president’s policy imperatives very much to heart. He will not want to give the president a “no” if there is a plausible “yes” he can offer. But his institutional responsibilities would shape his analysis and identification of the available legal options. The counsel might start with what the president wants. But his goal cannot be to just end there.
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This institutional perspective would compel a counsel in a matter like this to separate the critical questions into two parts. One would be concerned with the legal merits of the case: Is there a reasonable, good faith basis for the president to declare this emergency and proceed to avail himself of legal authorities with which to fund the wall? Of course, acts that are reasonable and taken in good faith cover a broad range of possibilities, and the critical question is how reasonably and with what degree of good faith this position could be maintained.
And this relates to the second level of analysis, which is forecasting the prospects that the president can sustain his position in litigation. It is not only a question of whether the president wins or loses but of other institutional costs of inviting a legal challenge of this significance and failing. Curious as it may seem, this analysis would have to take into account the effect on the president’s fortunes of bringing this particular case as the clock runs down on the Robert Mueller’s investigation and Cipollone reportedly prepares for other major conflicts over the president’s “absolute rights” and privileges.
Very experienced and skilled scholars and commentators have shown that there are paths toward a plausible, but certainly not “100 percent” invincible, legal theory for invoking an emergency and accessing funding for the wall. Of course, lawyers are trained and employed make arguments, and sometimes they are skilled in the creating the illusion of real substance out of what is largely a frolic. It is rare that some argument cannot be made about the meaning of terms like “essential to national defense,” “military construction projects to support the use of the armed forces,” or even “fence,” which appear in the statutes on which the president might base his funding of the wall upon the declaration of an emergency
But there is the rub. The administration’s lawyers cannot even reach these questions, and the president cannot access funding on which the answers turn, unless he can proclaim an emergency. The statute in question, the National Emergencies Act, does not give a president unreviewable discretion to decide however he chooses whether an emergency exists. Quite the contrary: The statute indicates that the president may proclaim an only an emergency that exists in fact. The law provides:
The law refers to a “period of national emergency” separate from the president’s choice to “declare it.” The president is not compelled to recognize the emergency in this fashion. He must do so, however, if he is seeking to gain access to the authorities, such as spending funds for military construction.
In sum, a president has the discretion to declare an emergency, not to create one. This distinction is critical. Congress did not attempt to define what constitutes an “emergency,” but this is not evidence that it left the choice without limits to the president. Rather, as one commentator wrote, the absence of a definition reflected “the assumption… that genuine crisis is readily identifiable by everyone in the polity.” Hence the law’s reference to “the period of a national emergency” which would be clear to all, and which would then—and only then—be subject to the president’s declaration at his or her discretion.
Read: What the president could do if he declares a state of emergency
This is the reading most consistent with the plain wording of the law but also with Congress’s reasons for enacting the statute: Concern about the adequacy of controls on the presidents’ invocation of emergency powers. Among the limits the legislature devised was automatic termination of an emergency one year after was declared, subject to the president’s choice to renew it. Congress also specified a procedure by which it could approve joint resolutions to terminate an emergency at any time.
Nothing in the statute or the legislative history suggests that in the event Congress did not resort to these controls, the president was free to do as he wished. It is, in fact, inconceivable that in 1976, when Congress enacted the statute, it was providing carte blanche to the president to ignore the separation of powers and spend freely any time Congress somehow failed to take the procedural measures to stop him.
After all, Congress then, as now, faces the normal collective-action problems in responding speedily, not to mention on the pace a president can set. A president can declare an emergency, and immediately exercise the special authorities that this declaration affords, much faster than Congress could be expected to act to consider, and if it chooses, rein in the executive.

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