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The Coronavirus Is A Real Crisis. The Border Wall Obviously Wasn’t.

A tale of two national emergencies.

March 23, 2020

This origin­ally appeared in the Wash­ing­ton Post.

Pres­id­ent Trump declared two signi­fic­ant national emer­gen­cies since he took office. The first was a faux emer­gency, a purely polit­ical ploy to fulfill a campaign prom­ise to his base by build­ing a “beau­ti­ful wall” on our border with Mexico. The second, last week, was a delayed response to a real emer­gency: the coronavirus pandemic. The differ­ences between the two can tell us a great deal about our system for emer­gency powers — and why it must be changed.

In both cases, Trump relied on the National Emer­gen­cies Act (NEA). The NEA author­izes the pres­id­ent to declare a national emer­gency, at which point he gains access to special powers contained in more than 100 other laws. These powers include narrow and sens­ible meas­ures, such as the author­ity to make grants quickly to nonprofit organ­iz­a­tions with expert­ise in the provi­sion of emer­gency services. They also include breath­tak­ing powers to shut down commu­nic­a­tions facil­it­ies, freeze Amer­ic­ans’ bank accounts, impose blanket prohib­i­tions on certain exports and send Amer­ican troops to serve under foreign govern­ments.

In Febru­ary 2019, after Congress repeatedly refused to provide the billions of dollars Trump reques­ted to build the border wall, the pres­id­ent claimed a national emer­gency under the NEA to address the “long-stand­ing” prob­lem of “unlaw­ful immig­ra­tion.” At the time, illegal border cross­ings were close to a 40-year low. To back his claim of a public safety threat, Trump dredged up anec­dotes of horrific crimes commit­ted by undoc­u­mented immig­rants — but stat­ist­ics show immig­rants, both docu­mented and undoc­u­mented, commit crimes at lower rates than U.S. citizens.

Trump invoked a law that allows the secret­ary of defense, during a national emer­gency “that requires the use of armed forces,” to divert funds toward milit­ary construc­tion projects “in support of that required use.” That very day, lawsuits were filed arguing this power has no applic­a­tion to immig­ra­tion enforce­ment efforts — an argu­ment two judges, to date, have accep­ted. Within a month of the declar­a­tion, Congress made history by voting for the first time since the NEA was enacted to termin­ate a national emer­gency. (Trump vetoed the resol­u­tion.)

Why the courts usually defer to pres­id­ents on national emer­gen­cies

Trump’s national emer­gency declar­a­tion in response to the coronavirus differs in almost every conceiv­able way. Unlike the phenomenon of unlaw­ful migra­tion, the coronavirus pandemic was sudden and unex­pec­ted, and it grew worse by the hour. The first confirmed case of the virus was in Novem­ber 2019; by March, it had become a global pandemic, with a foothold in at least 140 coun­tries. In some places, confirmed cases are doub­ling every two or three days.

There can be no doubt about the pandem­ic’s devast­at­ing impact on public health. The director general of the World Health Organ­iz­a­tion described it as a greater threat to human­ity than terror­ism. The coronavirus could be 10 times more deadly than the seasonal flu, which killed 80,000 Amer­ic­ans in the winter of 2017–2018, and there is no treat­ment. Accord­ing to Anthony S. Fauci, director of the NIH Insti­tute of Allergy and Infec­tious Diseases, a vaccine is unlikely to be avail­able for a year or longer.

Congress not only approves of treat­ing the coronavirus as an emer­gency; it went into crisis-response mode signi­fic­antly before Trump did. Congress approved $8.3 billion in emer­gency fund­ing in early March, even though Trump reques­ted only $2 billion. Putting aside misgiv­ings about Trump’s previ­ous use of emer­gency powers, three dozen Demo­crats signed a letter urging him to declare an emer­gency. Follow­ing the declar­a­tion, Congress effect­ively rati­fied the move by passing addi­tional emer­gency legis­la­tion, this time an economic relief pack­age.

Finally, the power Trump invoked in this national emer­gency declar­a­tion is clearly on point. He triggered a provi­sion of the Social Secur­ity Act allow­ing the secret­ary of the Depart­ment of Health and Human Services to waive certain Medi­care, Medi­caid and Chil­dren’s Health Insur­ance Program require­ments. These waivers will facil­it­ate flex­ible deliv­ery of health-care services, an import­ant compon­ent of the nation’s coronavirus response. Nearly a week later, not a single lawsuit has been filed chal­len­ging Trump’s declar­a­tion.

The lesson from these contrast­ing stor­ies is not that Trump finally figured out the right way to use emer­gency powers. To the contrary: He reportedly was reluct­ant to declare a national emer­gency, and he delayed the declar­a­tion because it would under­mine his message that the coronavirus is no differ­ent from the seasonal flu. An emer­gency declar­a­tion would signal a more dire real­ity, which could have adversely affected the stock market — and, in turn, his own reelec­tion chances.

Declar­ing an emer­gency when none exists to deliver on a campaign prom­ise is an abuse of emer­gency powers. So, too, is delay­ing an emer­gency declar­a­tion when one does exist for polit­ical gain. Instead of invok­ing emer­gency powers to liber­ate public-health resources, Trump wasted several weeks on a xeno­phobic strategy of extreme travel bans and quar­ant­ines, meas­ures having little public health bene­fit once a virus already has become wide­spread inside our own borders.

Clearly, whether Trump’s next invoc­a­tion of emer­gency powers is appro­pri­ate will depend solely on whether the interests of the nation align with his personal interests and biases. Another such invoc­a­tion could come any day. The pres­id­ent’s declar­a­tion on Friday gives him access to an enorm­ous range of powers, and there is no require­ment in the NEA that the power invoked relate to the nature of the emer­gency. Although the specific power he invoked Friday repres­ents a reas­on­able response to the pandemic, he still could invoke other powers less suit­able — and more worri­some.

Trump can’t save us from the coronavirus. But governors and mayors can.

What the contrast between the border wall emer­gency and the coronavirus emer­gency teaches us is simple: Reform­ing the law to limit its reach to real emer­gen­cies and appro­pri­ate powers is both possible and neces­sary. The NEA does not define “national emer­gency” — but we know one when we see it. A real emer­gency does not trig­ger months of debate over whether an emer­gency exists. In a real emer­gency, the Amer­ican public does not need to be told what has changed, nor convinced through obscure anec­dotes there is a threat to public safety. In a real emer­gency, offi­cials don’t have to shoe­horn ill-fitting emer­gency powers into a non-emer­gency situ­ation. Most import­ant, in a real emer­gency, Congress can and does act quickly. 

Under the law as it now exists, pres­id­ents effect­ively have the power to declare emer­gen­cies and keep them in place indef­in­itely, regard­less of whether they are real. Any member of Congress can force a vote on a resol­u­tion to termin­ate an emer­gency declar­a­tion, but enact­ing that resol­u­tion effect­ively requires a veto-proof major­ity — which, as we’ve seen, is virtu­ally impossible to achieve in today’s toxic polit­ical envir­on­ment. Moreover, even if Congress were able to over­ride a veto, the effect would be to inval­id­ate the declar­a­tion and rescind access to all the powers it triggered. In a case where the pres­id­ent invokes needed powers to address a true emer­gency, but then exploits the crisis to invoke powers he should not use, termin­at­ing the emer­gency declar­a­tion could create as many prob­lems as it solves.

This state of affairs is largely the fault of Congress, which has deleg­ated far too much author­ity to the pres­id­ent when it comes to emer­gency powers. Follow­ing the border wall emer­gency declar­a­tion, lawmakers intro­duced propos­als to reform the law. Many of these propos­als include the same key protec­tion: Any national emer­gency declared by the pres­id­ent must expire after 30 days unless Congress votes to approve it. Some also require congres­sional approval of the specific powers the pres­id­ent has invoked, allow­ing Congress to act as a scalpel when it chooses, rather than a hammer.

The approach in these propos­als is the right one. Reform­ing the law to require congres­sional approval, both of the emer­gency declar­a­tion itself and of the powers invoked, is not only a key part of restor­ing the consti­tu­tional balance of powers. It also will help ensure emer­gency powers are used only for emer­gen­cies the Amer­ican public recog­nizes as real — and not abused to consol­id­ate polit­ical power or get around the will of Congress.