Presidents and the Lessons of 'Emergency'

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The president of the United States is the civic-educator-in-chief – or should be. Everything the chief executive does provides lessons to citizens about how our political system works.  Invoking emergency powers to fund a border wall teaches a terrible lesson. It encourages the public to believe that whenever Congress blocks the president all he has to do to get his way is declare an emergency.

This does not mean President Trump has no legal grounds to back up his threats. He may have sufficient justification to declare an emergency because a number of laws are on the books that grant the president such powers without defining what an emergency is. Congress passed these laws to enable the president to act quickly and decisively in critical situations where obtaining congressional approval might prove too time consuming and cumbersome. But they were not intended to serve as an excuse to defy Congress and address a long-festering problem that, by the president’s own admission, has been years in the making. In other words, these statutes were not enacted to undermine the separation of powers that protects our liberties. Until now presidents have known this; they have not used these emergency provisions to aggrandize presidential power.

Since the law fails to provide clear guidelines about what constitutes an emergency, we must turn to another source. Luckily, our greatest presidential civic educators — George Washington and Abraham Lincoln — taught us how and when emergency presidential action is appropriate.

In order to avoid being drawn into a war between Britain and France, President Washington issued a proclamation declaring that the United States would remain neutral in such a conflict. The Constitution did not expressly grant him the power to make such a decision. It gives Congress, not the president, the power to declare war. It says nothing about who can declare peace. Washington did so unilaterally because he believed he had to.  Public sentiment favored the French. The U.S was militarily weak. To go to war against Britain was to risk annihilation.

In the early days of the Civil War, President Lincoln suspended habeas corpus. Habeas corpus is the right of a person detained by authorities to be brought before a judge and to be released unless lawful grounds are shown for the detention. The troops needed to defend Washington, D.C., from Confederate attack had to pass through Baltimore, a hotbed of Southern sentiment. To prevent obstruction of those troop movements, the commander-in-chief felt it necessary to round up and detain large numbers of subversive characters even in the absence of sufficient evidence to try them in court. The Constitution places the power to suspend habeas corpus in Article 1, which is devoted to Congress. Nonetheless, Lincoln felt he could not wait for Congress to act and so he took it upon himself to deny a cherished right.

If emergency presidential action is sometimes necessary, why doesn’t the Constitution provide for it? Article 2, which outlines presidential powers, makes no mention of such powers. Like the president, the framers of the Constitution were also civic educators. They recognized the slippery slope that “emergency” creates. If it was too easy to invoke, it would prove too tempting for a president to use it to evade Congress. However, by not expressly denying its use, the door was left open for what Lincoln and Washington did. Their examples teach that the president should only act unilaterally under the greatest provocation. Properly understood, emergency is synonymous with a dire and imminent threat to the nation’s security – attack by a superior enemy, invasion of the national capital – threats like that. These are the circumstances, the only ones, that justify evading the normal workings of our political system. By no stretch of the imagination do the problems along the Mexican border rise to that level.

Our current president is impatient. In his successful 2016 election campaign he pledged to build a wall, and two years later there is still no wall. In politics, as in life, patience is a hard lesson to learn. Because the 2018 midterms deprived the president’s party of control of Congress, he cannot have his wall, at least for the next two years, except by distorting the term “emergency.” It is hardly the job of a teacher, let alone the civic-educator-in-chief, to drain words of their meaning.

Marc Landy is a professor of political science at Boston College.

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