It’s not just the likelihood that he will lose in court-it’s how he will lose that matters.
When the recently arrived White House counsel, Pat Cipollone, took up his post, he could have had no illusions that the president whom he served would make his professional life easy. Just weeks into the job, he has been asked to provide legal support for the president’s declaration of a national emergency on the U.S.-Mexico border that would enable him to divert funds to the payment of “a wall.”
We don’t yet know whether the president is committed to this course. He omitted any mention of an emergency declaration from his Oval Office address on the border “crisis” on Tuesday. Then, after an unsuccessful meeting with the Democratic leadership to resolve the wall and government shutdown issues, the president returned to the possibility of assuming emergency powers, declaring that they were available to him as his “absolute right.” On Thursday morning, Trump put the odds of his taking this action at “maybe definitely.” He told reporters that his lawyers were “100 percent” behind his exercise of this “absolute right.”
It is possible, but exceedingly unlikely that Cipollone is that optimistic about the president’s chances of prevailing on this issue or so eager to please that he would give this or any other controversial legal position that Trump favors a “100 percent” seal of approval. A White House counsel must develop his recommendations from the particular perspective as an institutional lawyer-as counsel to the president and not personal consigliere to Donald Trump. He certainly must take the president’s policy imperatives very much to heart. He will not want to give the president a “no” if there is a plausible “yes” he can offer. But his institutional responsibilities would shape his analysis and identification of the available legal options. The counsel might start with what the president wants. But his goal cannot be to just end there.
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This institutional perspective would compel a counsel in a matter like this to separate the critical questions into two parts. One would be concerned with the legal merits of the case: Is there a reasonable, good faith basis for the president to declare this emergency and proceed to avail himself of legal authorities with which to fund the wall? Of course, acts that are reasonable and taken in good faith cover a broad range of possibilities, and the critical question is how reasonably and with what degree of good faith this position could be maintained.
And this relates to the second level of analysis, which is forecasting the prospects that the president can sustain his position in litigation. It is not only a question of whether the president wins or loses but of other institutional costs of inviting a legal challenge of this significance and failing. Curious as it may seem, this analysis would have to take into account the effect on the president’s fortunes of bringing this particular case as the clock runs down on the Robert Mueller’s investigation and Cipollone reportedly prepares for other major conflicts over the president’s “absolute rights” and privileges.
Very experienced and skilled scholars and commentators have shown that there are paths toward a plausible, but certainly not “100 percent” invincible, legal theory for invoking an emergency and accessing funding for the wall. Of course, lawyers are trained and employed make arguments, and sometimes they are skilled in the creating the illusion of real substance out of what is largely a frolic. It is rare that some argument cannot be made about the meaning of terms like “essential to national defense,” “military construction projects to support the use of the armed forces,” or even “fence,” which appear in the statutes on which the president might base his funding of the wall upon the declaration of an emergency
But there is the rub. The administration’s lawyers cannot even reach these questions, and the president cannot access funding on which the answers turn, unless he can proclaim an emergency. The statute in question, the National Emergencies Act, does not give a president unreviewable discretion to decide however he chooses whether an emergency exists. Quite the contrary: The statute indicates that the president may proclaim an only an emergency that exists in fact. The law provides:
With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.
The law refers to a “period of national emergency” separate from the president’s choice to “declare it.” The president is not compelled to recognize the emergency in this fashion. He must do so, however, if he is seeking to gain access to the authorities, such as spending funds for military construction.
In sum, a president has the discretion to declare an emergency, not to create one. This distinction is critical. Congress did not attempt to define what constitutes an “emergency,” but this is not evidence that it left the choice without limits to the president. Rather, as one commentator wrote, the absence of a definition reflected “the assumption … that genuine crisis is readily identifiable by everyone in the polity.” Hence the law’s reference to “the period of a national emergency” which would be clear to all, and which would then-and only then-be subject to the president’s declaration at his or her discretion.
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This is the reading most consistent with the plain wording of the law but also with Congress’s reasons for enacting the statute: Concern about the adequacy of controls on the presidents’ invocation of emergency powers. Among the limits the legislature devised was automatic termination of an emergency one year after was declared, subject to the president’s choice to renew it. Congress also specified a procedure by which it could approve joint resolutions to terminate an emergency at any time.
Nothing in the statute or the legislative history suggests that in the event Congress did not resort to these controls, the president was free to do as he wished. It is, in fact, inconceivable that in 1976, when Congress enacted the statute, it was providing carte blanche to the president to ignore the separation of powers and spend freely any time Congress somehow failed to take the procedural measures to stop him.
After all, Congress then, as now, faces the normal collective-action problems in responding speedily, not to mention on the pace a president can set. A president can declare an emergency, and immediately exercise the special authorities that this declaration affords, much faster than Congress could be expected to act to consider, and if it chooses, rein in the executive. Congress surely knew this much when it was legislating on these matters in reaction to the imperial presidency in the aftermath of the Vietnam War and Watergate.
Moreover, the suggestion that congressional execution of the joint resolution is the only check on the president requires imagining that Congress fell into a trap of its own making. The statute provides that even if Congress acts to terminate an emergency, the termination will not affect “any action taken or proceeding pending not finally concluded or determined on such date [of termination]” or “any action or proceeding based on any act committed prior to such date.” In other words, some of what the president has done by the proclamation of an emergency cannot be undone. Congress will always have to play catch-up and can never fully catch up.
This is not a reasonable reading of the statute, nor is it an appropriate assumption about Congress’ protection of its own constitutional authorities. It is critical to bear in mind what is at stake here: Congress has exclusive control of the power to appropriate. The expenditure of federal funds without lawful congressional authorization is a criminal offense. Congress could have written into the law the president’s unfettered discretion to determine the existence of an emergency. It did not. Courts will not lightly read into the law what Congress does not expressly provide on an issue central to the constitutional separation of powers.
Moreover, the more questionable the case for an emergency, the more unlikely that a court would read the statutory authorizations as broadly as the administration would like. You can only push the courts so far. A president who’s trying to advance the most aggressive case for deference to his judgment about an emergency may succeed on that front, and then fail to persuade the courts that even with the emergency in place, he has clear statutory authorization for the particular project-in Trump’s case, of course, the construction of the “beautiful” steel wall with slats that enable stateside observes to peer through to the other side.
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So the first problem the president faces is seeking to exercise discretion under this statute that he does not have. The second is that some of what he has said about the “emergency” undercuts the very claim that there is one. In fact, the president has periodically declared that things are going quite swimmingly at the border, as he did in remarks in meetings with congressional leaders:
A lot of the wall is built. It’s been very effective. I asked for a couple of notes on that. If you look at San Diego, illegal traffic dropped 92 percent once the wall was up. El Paso, illegal traffic dropped 72 percent, then ultimately 95 percent once the wall was up. In Tucson, Arizona, illegal traffic dropped 92 percent. Yuma, it dropped illegal traffic 95 to 96 percent.
Now, of course, administration will argue these comments merely showcase the virtues of the wall. If walls work in San Diego or Tucson or El Paso, then they can be expected to work with similarly spectacular results elsewhere.
The downside of this argument, however, is that, to take the president at his word, the administration is making do quite nicely without the declaration of an emergency-and hehas pushed his point hard. At Christmas time, he advised the American public that “Our country is doing very well … We are securing our borders,” after tweeting two weeks before that, “Border Patrol and our Military have done a FANTASTIC job of securing our Southern Border….” What then, supports the need for the use of extraordinary authorities in the name of an “emergency”?
Trump is not helped in answering this question by his other, repeated public utterances on the subject. He and his spokespersons have repeatedly made false statements about the terrorists, drugs, human trafficking, and ordinary criminals crossing over into the United States on foot at the southern border. These claims have been debunked by fact-checking just about everywhere, including at his own State Department. So he starts off in a bad place when claiming legal authority to proclaim an emergency, having both bragged that he is doing quite well without one and then misrepresented the grounds that might exist for such a proclamation if he nonetheless decided to issue it.
Finally, courts will not fail to note the considerable evidence in the president’s public statements that he is looking to the national of emergency as a tool to resolve a conflict with the Congress. He has said that one way or the other, he is going to build the wall, and the shutdown was the first bare-knuckled maneuver to break the stalemate in congressional negotiations. Now he’s speaking of an emergency. It is, on its face, a negotiating gambit, apparently also a political rallying cry. But because he is treating declaration of an emergency as a tactic, he has added considerably to his difficulties in having his “emergency” taken seriously by the courts.
The president’s predilection for trampling on his own case brings to mind his unhappy experience with the travel ban litigation caused by his statements on Twitter and on the campaign trail. Eventually, after considerable trimming and adjustment, the administration was able to do better with a revised executive order and a superseding proclamation. These cases tested difficult questions about the extent to which president’s public utterances-including statements on the campaign trail-invite the examination of the true motives behind executive action.
That Trump eventually survived this scrutiny in the travel cases will be little relevance to his efforts to concoct a national emergency now to support his wall-building project. In the travel ban cases, the Supreme Court found that he was operating under an immigration law that “exudes deference to the President in every clause.” The National Emergencies Act only “exudes” deference to his decision to proclaim an actual emergency. Moreover, none of the tricky issues presented by campaign trail statements made prior to election are present in this instance. Trump has issued a steady stream of statements as president. No one has to engage in any raw speculation or psychological testing to ferret out his motives. He has said what he has said, in clear terms and consistently. These are not slips of the tongue, but one statement after another, most of them separately-and all of them in the aggregate-damning to his legal position on the existence of an emergency.
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Commentators looking for illuminating constitutional precedents typically begin with the Youngstown Steel and Tube Co. case, in which the Supreme Court rejected President Truman’s claimed authority to direct the secretary of commerce to seize steel-producing facilities. The majority in that case produced two opinions, and other justices wrote as well, so it is fair to say that teasing out lucid doctrine from that case is no simple matter. However, it has become clear over time, from the more developed historical record, that the Court was decisively influenced by the evidence that no steel shortage crisis existed. There was no emergency and the Court was aware of this.
And so, for that matter, was the Truman White House. One staff memorandum that later came to light openly acknowledged public skepticism about the claim of emergency and conceded that it was well founded. “The fact is that the public has never believed this contention, and in the face of recent releases of steel for racetracks and bowling alleys, they are even less likely to believe this now.”
For this reason, Maeva Marcus, a leading historian of the case, has written: “The Court simply was not convinced of the crisis confronting the nation was sufficiently grave to justify the president’s assertion of power.” The factual circumstances surrounding the president’s claim of authority drove the court’s decision. Marcus notes approvingly one commentator’s view that “the legal arguments between the two divisions of the Court [in Youngstown] were consequently of little significance; the vital disagreement was over premises.” The Truman administration’s key premise was an emergency shortage in steel production-and there was none.
Trump has manufactured for himself the same problem from which Truman suffered: an absence of presidential credibility. It is possible, of course, that the courts will let Trump the hook, giving him more of the benefit of the doubt than Truman enjoyed. Trump would purportedly be acting pursuant to a statute, not on an expansive claim of inherent, constitutional authority. But is also true that when Truman misrepresented the emergency steel shortage, he was at least leading a nation at war.
It is also worth noting that Trump is repeating another mistake that Truman made. Like his distinguished predecessor, he is flaunting his view of the unqualified “absolute right” to declare this emergency. It never serves presidents well to enter into these constitutional tests with a show of arrogance, especially when their legal footing is far from secure. If Trump doubts this, he might ask legal veterans of the George W. Bush administration how they fared before the courts in advancing confrontational positions on rule-of-law issues in the War on Terror.
These are the considerations that would have to weigh heavily on a counsel’s practical assessment of the likelihood of success on the merits any proclamation of emergency on the border. Then the question is what he might say if the president responds to an assessment so far below the “100 percent” that Trump is angling for, by insisting that he cares little, or not at all, about the merits. After all, Trump may well see it in his interest to show his resolve on the wall, declare the emergency, and leave it to the courts to settle the question. If he loses, well, he’s done his best, and there will be judges to blame.
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So what might the White House counsel say when the president is unaffected by the prospect of losing, and sees political advantage in pressing ahead?
In the first instance, while it would be a long shot with this president, the counsel might try stressing the institutional costs of taking a losing case into court. It is not only the prospect of a loss, but also how he will lose, that the counsel might urge him to consider. The courts could issue a limiting interpretation of the law that hinders the exercise of this emergency authority in the future, wholly unrelated to the current controversy over the wall. Once legal actions of this nature take flight, there is no way of knowing where they might land. Sometimes the gamble is worth it, but in this case, with a defeat highly likely, the consequences for the presidency should weigh significantly in decision-making process.
In this instance, the losing president would also be a weakened president who leaves a legacy of a weakened presidency-and the president cannot bear the thought of being weak. But the president, if motivated by narrow political interests, could well bat this objection away.
That would be a mistake, even from the vantage point of his narrow self-interest.
In the very near term, Trump will be contending with the findings of the special counsel in the Russia investigation. It appears from press reports that his expanding office of lawyers is getting ready for battle. His attorneys have reportedly constructed a litigation strategy that would involve advancing aggressive constitutional positions on executive privilege to prevent disclosure what could be crucial portions of the Mueller findings. This is not all the only baggage that Cipollone may have to carry into a courthouse. He will presumably stand with the president’s personal lawyers in asserting that the president, free to command the law-enforcement machinery as he likes, enjoys immunity from liability for obstruction of justice. He may have to defend the president’s issuance of pardons in the Russia matter as the president insists that an unfettered, unreviewable pardon power is also his “absolute right.”
A president fighting on all these fronts has only so much capital and credibility to spend, and with his relentless attacks on the courts, he has spent much of it down. A White House counsel would have to inform him that he might ill afford an unnecessary loss on a tenuous claim of emergency authority, further depleting whatever capital remains.
Of course, even if Trump forgoes a test of emergency powers, he may have a fatal lack of credibility, not to mention a losing hand, on the issues coming his way in the months ahead. But the White House counsel might urge him to carefully consider whether he wants to make his road through the courts even harder. If all of Trump’s sweeping claims are added together, including now his readiness to contrive “national emergencies,” the president will appear in the litigation to come as an out-control-executive in urgent need of judicially administered discipline.
A White House counsel can make this argument in good conscience as an institutional lawyer, in the current and long-term interests of the presidency. But it is also an argument plainly pitched to the president’s self-interest. It may not succeed, but there may be no other ground on rule of law issues on which the White House counsel to Donald Trump can be heard.
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Bob Bauer is a professor of practice and distinguished scholar in residence at New York University School of Law and a former White House counsel to Barack Obama.