If President Donald Trump is hoping to expedite construction of a border wall, declaring a national emergency is a great way to ensure that doesn’t happen.
The president announced Friday he had invoked powers granted him by Congress to make a border crisis the 32nd active national emergency. “I could do the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster,” he told reporters gathered in the White House Rose Garden.
Indeed, the president has funds he could tap into with the aid of an emergency declaration. But that these actions would shore up the border “much faster” is a dubious claim. Wanting to do something faster versus needing to do it faster is the difference between a manufactured crisis and a real emergency.
Even before reporters had cleared the lawn, several organizations and states had promised to sue the administration, claiming the declaration is illegal. That means the feasible path forward runs straight through the judicial system, which doesn’t sound like the swift action the administration is hoping for.
By his own admission, President Trump is banking on going to the courts to win his funding. “We will then be sued, and they will sue us in the 9th Circuit … and we will possibly get a bad ruling, and we will end up in the Supreme Court, and hopefully we’ll get a fair shake, and we’ll win in the Supreme Court.”
The Supreme Court should be an adjudicator of legality and a check on executive and congressional power. “Political tool” is notably absent from the court’s description.
An executive declaration is not the constitutionally prescribed mechanism for taking care of the nation’s problems. That power is granted to Congress. When Congress fails to act, of course, executive orders look tempting. An exhausted President Barack Obama quipped he had “a pen and a phone” when an unbending Congress failed to deliver real policy.
Congress shoulders most of the blame for thrusting the courts into the political realm. The current judicial climate is a result of years of Congress abdicating authority and punting on hard issues. The immigration situation is a salient example of such inaction.
Although there is no discernible crisis at the border in the vein of the president’s talking points, that doesn’t discount the reality that border security needs help.
One of the actual emergencies concerns families and the inability of border agents and infrastructure to handle an influx of women and children. Many of those families are asylum-seekers, who U.S. law permits to enter the country. Taking care of their basic needs while streamlining the review process are the most pressing matters to address.
An extended wall could be a necessary part of a larger border overhaul that includes more agents, better infrastructure for detainees and asylum-seekers, technological advances, drone monitoring and better surveillance at ports of entry. A physical impediment could also slow down sex traffickers enough for agents to apprehend the culprits, according to some experts.
But process matters, and unilateral action is more likely to get tangled up in courts than create the lasting fixes the country needs to start restructuring its immigration systems.
Remarked Utah’s Sen. Mike Lee after the announcement, “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.”
Congress reclaiming its proper power will prevent judges from donning political capes, keep them in judicial robes and provide the much-needed check on the executive branch. Lawmakers should respond to the president by quickly convening and beginning work on real immigration solutions. Debates, votes and amendments won’t happen overnight, but committed lawmakers could surely make progress happen sooner than justices deliberating on the bench.