President Trump has painted himself into a corner by prematurely threatening to invoke emergency powers to deal with the problem at the border. Rather than creating political demand for a solution he is uniquely positioned to offer, he has invited scrutiny of his methods and motives from the outset. As a result, he has taken the lion’s share of the blame for the impasse over the border wall and the resultant shutdown, with his approval ratings slipping. He may yet manage to wriggle out of this political trap. He and Senate majority leader Mitch McConnell have a viable plan to shift blame for the shutdown onto intransigent and radicalized House Democrats. Nonetheless, the president would do well to avoid the same trap in the future. This will require using to his advantage the constitutional division of governing labor between the branches — and avoiding the awkward statutory web that sits atop it.
Three problems intrinsic to the American presidency make the presidential exercise of emergency powers challenging. First, the president is beset by a mismatch between his responsibilities and his capacities. Public expectations of the president are considerable, but the Constitution withholds many of the most efficient means of meeting them. To solve this problem, the president needs political allies. Successful presidents build coalitions around themselves, sharing credit but also diffusing blame. Under conditions of divided government, a president has two choices: follow this path of coalition-building or sit isolated and increasingly inert. Bill Clinton and George W. Bush both chose the former route. Obama took the latter, coming eventually to resemble a stony bust of himself.
Second, the powers of the president are blunt objects, especially with respect to emergencies. In the best of times, the government is often an annoyance. In a crisis, the government detains people. It damages and destroys property. It disrupts the flow of commerce and the habits of everyday life. This means that even the successful exercise of crisis power is likely to breed at least some resentment. When the crisis has passed, the exercise of power at the expense of individuals, especially when it ran roughshod over the rights of citizens, looks a great deal like high-handedness.
Third, presidents hope to stack up accomplishments like pharaohs preparing for a political Duat, and this makes them disposed to hoard credit. Even those of comparatively modest personality claim responsibility for the course of events, events they more often than not do not control. It was Truman, of all people, who insisted the buck stopped with him. Yet the constitutional architecture of the presidency is designed to punish precisely this sort of self-aggrandizement when it comes to emergencies, meaning that presidents are especially likely to charge headlong into a crisis and thus into a political thicket.
When it comes to crises specifically, recent presidents have tended to make two additional mistakes. First, emergencies are not self-evident and their solutions are not self-justifying. Contrary to the earnest belief of American presidents, crises must be explained, believed by the public, and addressed with persuasion in mind. Even an emergency that is widely acknowledged — a Hurricane Katrina or a 9/11, for instance — does not ipso facto justify a specific set of policy responses. Emergencies are political from the beginning.
Yet politicians tend to believe that emergencies are when politics fall to the wayside. Rahm Emanuel infamously declared that a good crisis ought not to go to waste. An emergency, he seemed to think, can create conditions of public support across the board, making policy goals previously thought impossible a reality. As the foregoing paragraphs should make clear, however, nothing could be further from the truth. Crises are political, even as their speed and stakes break down the normal procedures for handling political problems. So at the very moment when presidents most need to employ their political skills — and presidents are by definition successful and resourceful politicians — they tend to underuse them in favor of bullheaded self-reliance.
Second, instead of boldly and openly leading, recent presidents have shrouded their uses of emergency power in idiosyncratic readings of statutes. The Constitution’s separation of powers denies the president the institutional resources required to conduct crisis government wholly inside the executive branch. As the border dispute makes clear, the administration has limited means of financing projects and almost no recourse to keep litigation at bay. Statutes are hard to parse. Conflict over meaning gets kicked into the courts and therefore out of the way for the time being. The illusion of initiative follows. However, because it does not secure consensus, taking a legal shortcut leaves a president open to attack by his political rivals. And the toughness of emergency measures, however well intended, provides others ample ground to treat an administration as illegitimate.
Aggravating the matter still further, in the wake of Vietnam, Congress passed a series of stupidly engineered statutes meant to put prophylactic guardrails around emergency powers — as if the range of crisis possibilities could be both precisely anticipated and procedurally accommodated. These statutes have instead created a mess of crosscutting guidelines.
Worse still, they compound political confusion with lexical imprecision. The Emergency Powers Act, for instance, does not so much create a framework for crisis government as it establishes a cluster of preemptive authorizations for addressing a set of potential problems. The International Emergency Economic Powers Act, effectively a delegation of economic sanction powers to the executive branch, simply requires a semiannual declaration that the president finds that a state of emergency exists in order for said emergency to continue. As of last year, the United States was in 28 different states of emergency, the oldest of which dated back to 1979. Nonetheless, declaring an emergency is likely to spark a significant political response. That response, especially if the crisis in question or the methods to be used are highly controversial, encourages the White House to fall back on statutory authorizations.
To put meat on these bones, let us consider how the George W. Bush administration handled the politics of enhanced interrogation after 9/11. At least from the arrest of Khalid Sheikh Mohammed in early 2003, American officials, fearing that another mass-casualty attack was imminent, held and waterboarded several “high-value detainees” despite statutory prohibitions against torture and indefinite detention. Rather than request new statutory authorization for its in-terrogation policy, and thereby lock in congressional commitment, the White House gave the other branches the legal runaround while defending interrogation tactics that Congress likely would have approved. The Office of Legal Counsel produced memos offering unconventional statutory constructions and strained analogical reasoning, among other things drawing on obscure statutory language in health-care law to define torture or, more accurately, define it away. The resultant “torture debate” was a persistent political wound for the Bush administration’s counterterrorism program.
The memoirs of the various participants involved in interrogation and detention make it obvious that their authors were motivated by genuine and reasonable fear of a second attack. To meet this perceived threat, the administration decided to use all efficient powers. Nonetheless, these ostensibly necessary policies did not transcend politics. Instead, once the immediate panic following 9/11 subsided, political opponents of the White House challenged the probity of enhanced interrogation and indefinite detention, even exploiting unrelated abuses at Abu Ghraib. Having declined to defend these policies on their merits before doubt set in — having never forced Congress to consent publicly to new interrogation methods — the Bush administration could do little while congressional Democrats who had signed off on waterboarding behind closed doors gained political advantage by condemning the practice as illegal and immoral.
What, then, is a president, mindful of these traps, to do? Whenever possible, the president should wait. This will seem counterintuitive in the face of an emergency (and its accompanying media storm). But refusing to act as pressure builds creates the political conditions for deploying the full scope of presidential power. A president beseeched by one of the other branches to act can secure public professions of support up front and thereby lock in his political rivals for the duration of the emergency and beyond. Having asked for his intervention, they will struggle politically to distance themselves from the president’s actions when the dust settles.
However, when waiting becomes impossible, the president should act forthrightly and boldly, then expediently lay his actions before the legislature and demand indemnification. This approach may seem startling. Yet presidents have long acted unilaterally beyond their powers to secure the national interest and then sought retroactive authorization from Congress. Cases range from the mundane (canceling out-of-date treaties) to the profound (Jefferson appropriating funds to secure the Louisiana Purchase). In the first case, Washington effectively cultivated consensus prior to engaging the Whiskey Rebels by delaying until other parts of the government publicly begged for his intervention. In the second instance, Lincoln faced a more pressing threat to national existence, acted absent congressional authorization, and then boldly subjected himself to the judgment of the legislature for ex post facto indemnification or condemnation. Both approaches worked, effectively securing political consensus behind emergency government for the duration of their respective crises.
Returning to the border, then, imagine if President Trump had sotto voce encouraged Republican governors and his allies in Congress to draw attention to the humanitarian and security situation along America’s southern border and to the inland effects of illicit cross-border trade. Even if artificial, a seemingly public demand for presidential action would have reduced the sense that the president’s border policy was driven chiefly by electoral expediency rather than objective need. Alternatively, if the president had chosen to erect barriers in the midst of the migrant-caravan riots late last year, he could have received ex post facto authorization in the lame-duck Congress sufficient to construct considerable physical barriers.
However the present government shutdown ends, President Trump would do well to start laying the groundwork for one or both of these approaches over the course of the next two years.