State of Emergency or Abuse of Power?

Pundits warn of grave harm to the separation of powers—but is it already too late?

As the partial government shutdown lumbers through its third week, much like the zombie herds of The Walking Dead, President Trump has been mulling to reporters and on Twitter as to whether he will declare a state of emergency at the country‘s southern border and use that as a justification to divert money from the defense budget into building the wall. Trump declares that such a move is his right under the Constitution—and while scholars who are far more knowledgeable on the subject that I am are sure to debate the accuracy of that assertion, fellow conservatives are already raising concerns about the potential violence such a thing would do to the separation of powers as defined under the Constitution.

Rich Lowry spelled out the problem succinctly in his Politico column today:

President Donald Trump is playing with the idea of declaring a national emergency to build a border fence despite congressional opposition.

This would make Trump the second president in a row willing to cut Congress out of the legislative process if it doesn’t agree to his priorities on immigration, and is a very bad idea.

It would functionally be an end run around Congress’ power of the purse; create yet another precedent for “pen and phone” governance, which is not how our system is meant to work; and probably not achieve his substantive or political goals.

Charles Cooke, Lowry’s colleague at National Review, raised similar concerns when he tweeted:


Of course, the actions five years ago to which both of them allude was when Barack Obama unilaterally declared DACA—the Deferred Action for Childhood Arrivals, which allows the kids of illegal immigrants to remain in the United States legally—the official policy of his administration, even after Congress had rejected it. As Obama famously put it, this was his way of governing by pen and phone, when he couldn’t get what he wanted legislatively. Trump, as Lowry and Cooke correctly observe, is now threatening to do the same by assuming powers that are not his to take. This, in their view, marks another dangerous departure from constitutional norms.

The key word here, however, is another. Because, as they point out, that taboo has already been broken.

And herein lies the problem. What kind of signal does it send to Democrats when they enthusiastically support one of their presidents when he threatens the separation of powers, while Republicans call out one of their own for doing the same thing? On a positive note, it signals loud and clear which of the two parties stands on principle and which is willing to jettison principle for convenience—but doesn’t it also convey a singular weakness on the part of Republicans?

Put another way: What does it say when Democrats are allowed to do whatever they want in the pursuit of power, while Republicans constrain themselves to the rule of law?

For right or wrong, Democrats will see this is a sign of weakness—and when they see weakness, they will exploit it.

Please bear in mind that I’m not advocating any position here. Trump doing an end-run around an intractable Congress most definitely undermines the separation of powers and the Constitution, and opposing him on those grounds is a defensible conservative position. When viewed in the context of how Democrats have already wrecked that delicate balance, however, the way in which we should respond becomes less clear.

But that’s what happens when one side has rules and the other side has none.

No. 1-8

Of course you're "advocating a position," or you wouldn't be advancing the "Democrats are tyrants, so Republicans have to be, too." argument. Very passive-aggressive - and Trumpesque.


'The other guys did it first' is no more valid when you're a President than when you're a 5yo.


Just because a President has acted thus and so in the past doesn’t make his actions constitutional. Just because the House and the Senate refuses to fulfill their constitutional responsibility does by default give the President the authority.

It is sad to watch the decline of this once good nation.



If I may draw one distinction here...Whereas Obama's actions arguably dealt with naturalization law and a failure to enforce laws on the books, there is at least the case that Trump is compelled by his role as commander-in-chief to secure the border regardless of whether Congress acts. I don't like it, but some argue that it is a different scenario all together. For example, if we got nuked, Trump wouldn't have to go to congress before retaliating. He could just do it. It's a poor analogy since the funds had already been appropriated, but the point is that if Trump cannot find the necessary statutory justification to continue building a fence/wall, some argue that it is inherently his job to do so as commander-in-chief.


I think the DACA comparison is more apt to the "muslim" ban. I say both are legitimate use of executive power on how we execute existing law, but as always there's room for disagreement. Using executive power to build wall is further step on that slippery slope of executive power.

That said, I think the reality is that we have an incredibly broken legislative process, but I don't blame people in congress - we elected them. It's our fault as voters. It's our fault for listening to liars and cheats. It's our fault listening to the loudest voices who tell us 1+1 equals 5.