The border wall, fence, barrier or slat is the sole issue driving the government shutdown. Due to its increasing likelihood, I will focus on the constitutionality of President Trump declaring a national emergency to build the wall. A national emergency would allow the President to circumvent congress and use the military to build the wall. I will not focus on the merits of the wall, but rather the potential Executive overreach.
Presidents should only declare national emergencies if, for some reason, Congress cannot act quickly enough to come to a consensus on a pressing issue. The security of the U.S.-Mexican border has been a systematic and long lasting issue, but it has not yet escalated anywhere near an emergency. Trumping (pun intended) the legislative branch should be done only in rare instances and, if possible, avoided entirely. This is paramount because Presidential overreach is already pervasive within government. All one would have to do is look to the many executive orders of Presidents Bush, Obama and Trump. Executive orders are commands directly from the President that make changes in the government, bypassing the influence of the other branches. A large majority of these actions are sanctioned by laws created in Congress, and not from constitutionally derived powers in Article II of the Constitution.
Instead of going into specific powers, it’s important to understand that executive orders are not laws. President Trump could revoke all of President Obama’s executive orders tomorrow. This creates instability and this power is overused because it is more expedient than negotiating with Congress. A common criticism of the American system is that it is often in gridlock and this is a fault in the system. However, this is by design. It should be difficult to pass legislation so that only the most prudent actions are taken and government is as limited, and as optimized as possible.
If Trump declares a national emergency, the courts will likely reverse the action and nothing will be accomplished. Rather, it would add to the already massive precedent that the President can sign pieces of paper and dictate policy outside of their original constitutional powers. Building the wall in this way would likely go beyond the limitations outlined in the National Emergencies Act, wherein Congress grants the President some powers that are not enumerated in the Constitution.
Whether you want the wall or not, you must see that this overreach will have implications for future administrations. Whether they are Republican or Democrat, benevolent or malicious, giving further license to abuses of power will continue to undermine the separation of powers constructed by our Constitution. Accomplishing anything of value is difficult, complex and requires dialogue to formulate the best solution possible. Presidential decrees do not go through this stringent process of refinement. Executive orders may not seem like a big deal now, but freedom is not taken away overnight. I am not claiming an imminent rapture, but this certainly does not move American politics in a good direction.