Trump’s National Emergency Declaration Violates Constitution, Endangers Democracy

Interview with Elliot Mincberg, senior fellow with the group People for the American Way, conducted by Scott Harris

President Trump declared a national emergency on Feb. 15, pivoting off his surrender to Congress’ refusal to allocate the $5.7 billion he demanded to build his southern border wall. As the White House hinted for weeks, the emergency declaration was a desperate ploy to bypass Congress to take money allocated for other purposes to fund the U.S. Mexico border wall he pledged to construct during his 2016 election campaign.
In a disjointed speech made in the White House Rose Garden, Trump repeated his standard lies about the need for a border wall to address what he falsely claims to be a national security threat of violent crime committed by immigrants and to stop a flood of illegal drugs entering the U.S. from Mexico. and a coalition of groups across the U.S. organized protests in 48 states on Feb. 18, attracting the participation of at least 50,000 people demonstrating their opposition to Trump’s emergency declaration. In addition to proposed legislation to overturn Trump’s move to divert funds for the wall making its way through Congress, 16 states filed a federal lawsuit challenging the national emergency declaration, which will likely be heard by the Supreme Court during the 2020 election campaign. Between The Lines’ Scott Harris spoke with Elliot Mincberg, senior fellow with the group People for the American Way, who examines the constitutionality of President Trump’s declaration of a national emergency to get his wall, and the possible long-term damage to the rule of law and democracy.

ELLIOT MINCBERG: We’re firmly opposed to it and believe that it is an astonishing power grab, even more astonishing than what Trump has done already that violates not only the National Emergencies Act, but the Constitution itself in its attempt to literally and unilaterally override a decision by Congress – Republicans and Democrats, by the way – not to give Trump the money he wants for this border wall.

BETWEEN THE LINES: Just in terms of the constitutionality of Trump’s emergency declaration, maybe you could explain a bit to our audience about provisions within the United States government for a president to invoke emergency powers. What has been the norm until this move by Trump and what we can expect in terms of constitutional challenges to what he’s done here?

ELLIOT MINCBERG: Sure. They’re both constitutional and statutory. The major authority for a president to clear a national emergency is from the National Emergency Act passed by Congress, which gives a president fairly broad discretion in figuring out what an emergency is, but has a couple of very important limitations. First, there are limits on what purposes that you can use a national emergency to justify spending that hasn’t been authorized by Congress. We think it’s very clear that those limits have been breached by the plans as announced by Trump and the White House. Even if by some incredible stretch, one considered this an emergency in any sense of the word, he doesn’t have the statutory authority to spend these billions of dollars on the wall that he wants to spend it on. But the other thing that the National Emergencies Act does is provides at least some element of check and balance with the legislative branch.

What can happen under the Act, already underway in the House is one house can pass a resolution that essentially condemns the national emergency declaration and tries to revoke it. “No, there really is no such emergency, we don’t agree with president.” And if the House passes that as we expect it will, then the Senate by law has 15 days to vote yay or nay on the Senate floor. No filibuster. No delay. Got to happen.

And that’s the critical vote where Republican as well as Democratic votes need to stand up and be counted. If both houses rebuke President Trump, he still can veto that, unfortunately. It will take a large majority, two-thirds to override that veto. But that’s still possible if there’s enough citizen activism around the country from people pressuring both Democratic and Republican legislators to essentially revoke his astonishing emergency declaration. If that doesn’t work, then I think the courts are our major alternative, which I’m happy to discuss.

BETWEEN THE LINES: In your view, what is the long-term damage to our democracy and the role of Congress as an independent branch of government in our Constitution, if this emergency declaration is left to stand?

ELLIOT MINCBERG: if Trump gets away with this, he and future presidents can effectively become dictators in the United States. What does a foreign dictator do? Usually they go to their alleged congress before they do something and if congress doesn’t give them what they want, they do it anyway. That’s exactly what Trump is trying to do now. And that kind of action by Trump, if not checked by Congress, by the courts, could lead America to going right down that road.

Indeed, there are many Republicans that are worried that future Democratic presidents may use this to justify unilateral action on climate change or on gun control, causes that I personally believe in quite strongly – but do believe that in our democracy, have to involve both the president and the Congress in taking action.

For more information on the People for the American Way, visit

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