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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.