Friday, February 15, 2019

What is an emergency? Donald Trump and the Border Wall

So ... Donald Trump has declared an emergency so he can fund his promised border wall. You can find coverage from CBC here.  I suspect that this will become another cause célèbre and another point of conflict between Republicans and Democrats. This might even be its intention. The way in which politics is "done" in the US is changing and has already changed in appreciable degrees. The idea of using emergency funding for public policy initiative is, however, another matter and something that deserves some discussion because it raises important issues:

  • What is an emergency
  • When does an emergency exist
  • What are the implications of using emergency powers for public policy initiatives

The first question is both the easiest and most difficult to answer.  I am not going to claim to be an expert on American law regarding emergencies but a number of emergencies are "declared" every year and that is what makes them emergencies. Authorities in civil society -- an executive (a governor, president, major, etc.) -- declared an "emergency", in effect says that one exists and, ipso facto, it exists. 

I am sure it is more complicated than this but you can see the general point. A declaration of emergency relies on the discretion of the executive authority (say, a president or a governor). Declaring an emergency allows on to access special money that can be set aside, as it were, for emergencies, to address a significant, immediate, and unforeseen problem. When we think of emergencies, we often think of natural disasters because these would the ones that we see most often on the news: hurricanes, wildfires, floods. When this occurs, there are a lot of people (sometimes millions) who are in immediate need who would have not been in need the day before. Infrastructure has been destroyed, first responders (of various sorts have been stretched to the limits), the private sector (say, insurance companies) may not be able to cope with the scale and scope of the problem. Said differently, one of the characteristics of an emergency is not that it is a problem but that it is a problem that pops up and threatens infrastructure, life, health, etc.

What we see with Trump's announcement is a shift in the definition of "emergency" from the above to "things we don't like." I want to be clear on this issue. I am not saying that non-emergency situations are not important don't have significant, indeed potentially life-threatening, implications.  For instance, the failure of effective gun control is a life-threatening situation. The failure of effective health care is a life threatening situation. To the families involved they are emergencies but neither the US (nor Canada) declares a national emergency to deal with them. Why? It is not that they are unimportant. They clearly are. But, they are not a surprise; they have not just popped up. 

Illegal immigration to the US is something similar. While significant claims will be made about is effects, the truth of the matter is that the situation in the US is no different today than it was yesterday. In fact, according to the Trump administration, it is even better than it was. What we have, then, is a situation where an emergency is being declared not to address an emergency (which by the general understanding of the term does not exist -- again, the situation is no different today than yesterday), but to address an on-going matter of public policy.

I want to be clear about the point I am making. I am not -- and note this -- stating that that illegal immigration is a problem; nor am I stating that it is not a problem. I am simply trying to determine what constitutes an emergency.   Again, I want to point out, I am not trying to say that the difference between and emergency and not an emergency is importance or harm or seriousness or level of concern. These would, in my view, in fact, be non-starters for discussion because they are so amenable to subjective assessments.  What is a serious issue can differ from person to person. I think health care is particularly important, or the environment; I have friends who simply don't. I would avoid the entire debate because one really does not want to base something as important as an executive declaration on the legitimacy of a subjective assessment. 

Why? This is where I think the Trump government -- and Republicans in general -- might be opening a can of worms that they don't want to open. I have no doubt, of course, that Republicans think that illegal immigration to the US is a problem of the highest importance.  But do they really want to set that precedent? The simple fact that I, or you, or someone else, believes that an emergency exists does not make it an emergency. I might think it is an emergency because I view the issue as particularly important but, to be clear, I am not master of the universe. 

Yet, if we establish this principle: if a president feels an issues is important and cannot get funding from Congress, he or she can simply declare an emergency and ... poof ... an emergency exists and they get money to address their concern. Said differently, what happens when there is a Democratic president. What if they feel that gun violence is a national emergency or the lack of proper water conservation measures in some parts of America, or the lack of proper health care for the poor, or the border wall ... imagine that they want it torn down. 

You see my point. An emergency requires some criteria and that criteria must be something other than "it is important." Without it, there is no check on executive power and this is, if I were an American, what would be for me a big concern. What the current administration is not understanding is that the US governmental system, with its division of powers, is actually functioning precisely the way it was supposed to function. Presidents were not supposed to have independent spending authority. Money was supposed to used by government only with the the consent of the people -- no taxation without representation -- which was one of the philosophical basis of the US Revolution (or, the American War as the British called it), the rebellion of the colonies and the creation of a new system of government. 

What this declaration does is to throw that model out and use emergency powers to circumvent the limits on executive authority that the founders of the US established. Now, to be sure, today is not yesterday much less the 18th century and limits on executive authority have been waning for some time. This  use of emergency powers and the precedent it sets creates a brand now and dramatic extension of that authority. The compromise and negotiations that the founders of the US (whatever their flaws) sound to embed as the key to a republican government that avoided tyranny have been circumvented. And, it would not have mattered who was in government or what the issue was. 

This is, in other words, a really important declaration that will have long lasting implications. Trump is about to spend money he could not get through design and he is about to do so in a way that runs counter to the intentions of those people who created the US. I suspect that his supporters are so convinced he is right that they do not see the problem nor do they see very far ahead. They may, in fact, be establishing a principle that will challenge their own conceptions of what is America and that challenge may come sooner rather than later. 

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I began teaching at university over two decades ago and in that time one (well, more than one but this is the one about which I am blogging ...