Earlier today, Sarah Huckabee Sanders announced that President Trump will sign the compromise government funding bill and “will also take other executive action — including a national emergency — to ensure we stop the national security and humanitarian crisis at the border.” These are ominous words, indicating that the president is prepared to defy Congress and the plain language of the relevant statutes in a blatant abuse of power. Moreover, because he’s apparently set to invoke “national security,” the stakes are particularly high. Here’s why.
Traditionally, the Supreme Court has granted the president an immense amount of deference on matters of national security. While that deference isn’t unlimited (see Youngstown Sheet & Tube Co. v. Sawyer), as a general matter, courts are reluctant to intervene when the president invokes his powers as commander-in-chief, preferring to leave key national security determinations to the political branches. But if the courts defer here, they’ll set a dangerous precedent. They’ll permit the president to override a comprehensive civilian statutory border-protection scheme in the absence of any armed conflict or event the reasonable prospect of any armed conflict on the southern border.
The border-security mission with an allied nation is a civilian mission. The border wall is a civilian structure that will be manned by civilian government employees. The border-security scheme is set by congressional statute (and is set to be modestly supplemented by the very compromise funding bill that Trump is about to defy). The wall is not a military fortification. Moreover, crime prevention and the enforcement of criminal laws is also fundamentally a civilian mission. The president waving his hands and citing “national security” doesn’t change any of these facts.
If the Supreme Court wants to maintain deference in the case of war or the prospect of war, it can still check Trump without doing any damage to the commander-in-chief’s constitutional military authority. There can and should be one degree of deference in the presence or prospect of an armed conflict under international law and lesser deference in the absence of an armed conflict or the prospect of an armed conflict. Otherwise “national security” simply means whatever the president says it means, and it can be invoked at will to enable a host of abuses.
It has become plain that we cannot trust presidents to police their own use of power. They will press to the very limits, trusting partisan allies in the House or Senate to limit any congressional response. That’s the story of DACA and DAPA, and Trump hopes that’s the story of his national-emergency declaration. But the judicial power of the Article III courts encompasses the ability to interpret statutes enacted by Congress, and courts abdicate their constitutional role if they delegate to the chief executive the interpretation of the national-security statutes that he seeks to enforce.