President Donald Trump has encountered criticism from both sides over his declaration of a national emergency on border security. Beyond the discussion of whether the situation warrants such action, many in the political world have raised the prospect that Trump is setting a dangerous precedent that will give future chief executives the opportunity to declare national emergencies to address any domestic issue by fiat, bypassing Congress.
It is a weak argument on several levels, but it appears to be the reason why a growing number of Senate Republicans have buckled to objections from Democrats and will support a joint resolution to terminate the president’s declaration. Trump still has the veto, though, so the resolution will prove meaningless and the fight will be taken to the courts, where the president’s clear authority will be upheld.
No Need for a National Emergency
As the president himself pointed out during his CPAC address, he is not setting any precedent because a future Democratic president would invoke national emergency powers if they saw fit to do so, regardless of what Trump does in the present. How quickly people forget that the most stunning example – in recent years – of a president completely bypassing Congress to take action on a major issue of national concern was Barack Obama’s creation of the DACA program. In that instance, the president simply ignored Congress, commandeered its authority to legislate, and changed federal law. Obama did not even declare a national emergency to do so and Congress put up no fight.
The idea, then, that Trump’s national emergency declaration will embolden future presidents to use the same tactic is nonsense. Congressional Democrats have shown that they are willing to simply cede unlimited authority to a president, should they choose to do so.
The argument – strawman that it may be – has been put out there, though. Specifically, Democratic presidential hopefuls have suggested they may use the measure to deal with gun violence. Could a national emergency declaration do anything to reduce gun crime or would it merely be an excuse to further erode the Second Amendment rights of law-abiding citizens?
Democrats have volunteered no explanation of what the threatened national emergency on gun violence would look like. The truth is, the threat is empty. There is no possible legal basis for a president to unilaterally alter federal firearms laws. National emergency statutes do not grant any authority to impose new laws or to alter existing ones.
Once again, Obama’s creation of the DACA program shows that a future Democratic president need not declare a national emergency to impose draconian new gun restrictions. In fact, using the national emergency statutes would actually limit a president’s power, in this respect.
2A Rights Guaranteed During National Emergencies
In 2006, the 109th Congress passed the Disaster Recovery Personal Protection Act which prohibits the confiscation – either permanently or temporarily – of privately-owned firearms during times of national emergency. It also prohibits the establishment of a gun registry and the imposition of restrictions on the carrying of firearms. This law does not, of course, override any existing federal, state or local firearms regulations already on the books, but it explicitly prevents a national emergency declaration being used to justify the creation of new restrictions.
There is certainly an argument to be made that the situation with the influx of illegal aliens across the southern border should never have gotten to this point, but the fault lies squarely with Congress. Both Democrats and Republicans have failed, for decades, to adequately address the issue. The president elevated the problem to the level of national emergency in order to appropriate adequate funds to construct border barriers and provide the resources necessary to expedite the processing of illegal border-crossers.
As with previous national emergencies, however, this latest one does nothing to infringe upon the constitutional rights of American citizens. A dangerous precedent would be to declare such an emergency as a way of depriving Americans of a right protected in the very founding document that forms the basis of all U.S. law.
House Speaker Nancy Pelosi (D-CA) has already hinted at the possibility of a gun-related national emergency and it is clearly a talking point that her party has adopted and intends to promote. Julian Castro, who is competing for the Democratic presidential nomination, told MSNBC: “I will come into office with a strong belief … that the fact that so many people in this country die because of gun violence, that is a national emergency.” Castro has also suggested, in a tweet, that climate change may also be a policy area over which a national emergency could be declared.
Another presidential candidate, California Democrat Kamala Harris, dutifully parroted the party line by hinting that, in addition to gun violence and climate change, healthcare may require a national emergency.
https://twitter.com/KamalaHarris/status/1097579446251544577
Is any president justified in using executive authority to mold domestic policy without legislation from Congress – even to address a major issue that Congress has consistently proved unwilling and/or unable to deal with? Even to those who view with skepticism any expansion or overreach of presidential authority, it is difficult to dismiss the argument that, where the legislative branch fails to resolve an ongoing national problem, the executive branch should take action. Certainly, those Democrats – and Republicans – who uttered not one word of objection when Obama legalized illegal aliens with the stroke of a pen would agree.
On the other hand, a president has no constitutional or moral authority to deprive citizens of their rights in the name of what they have decided to call an emergency; whether that be the right to own and carry a firearm or the right to choose a health insurance plan.
Defining an Emergency
The second question to consider is: How does one define emergency? The abuse of America’s immigration laws has taken place over several decades, so is it really now an emergency? The same can be said of gun violence, the affordability of healthcare or the effects of climate change. The (Merriam-Webster) dictionary definition of an emergency is “an unforeseen combination of circumstances or the resulting state that calls for immediate action,” or “an urgent need for assistance or relief.”
None of the aforementioned situations are unforeseen and whether any of them require urgent relief is an entirely subjective argument. If emergency measures are needed in order to save lives, then why not declare the consumption of alcohol a national emergency – or smoking, for that matter?
According to the National Institute on Alcohol Abuse and Alcoholism, some 88,000 Americans die every year from alcohol-rated causes, making this “the third leading preventable cause of death in the United States.” Smoking – incidentally – is number two. This figure for alcohol-related fatalities dwarfs the number of annual gun-related deaths, so why would gun violence warrant a national emergency but alcohol consumption not?
Empty Threat
Clearly, a future Democratic president would have no credible basis for declaring gun violence a national emergency and no legal authority to use such a declaration to enact any additional gun restrictions. The threat is empty. Any future president who wants to deprive Americans of their Second Amendment rights will attempt to do so without invoking national emergency powers.
Democrats using this threat are being outrageously disingenuous. Republicans going along with them are either entirely out of touch with reality or they are willingly perpetrating a ruse and assuming the American people are gullible enough to believe them.
