Trump’s National Emergency Declaration: A Worrisome Precedent for U.S. Foreign Policy

March 13, 2019

What effect will President Donald Trump’s national emergency declaration have on the making of foreign policy?

The declaration undermines the separation of powers by allowing the president to redirect funds for items that Congress specifically rejected. Critically, it allows the president to unilaterally decide what is needed for national defense, how to redirect funds for his own defense priorities, and to use the armed forces for these purposes without congressional authorization. Increasing the power of the presidency and allowing the executive to act without Congress will likely set precedents that eventually make U.S. foreign policy more volatile, expansionist, and conflict-prone.

My research examines the efficacy of the congressional check on executive power, finding that the president has institutional incentives to deploy U.S. forces abroad – and that Congress can temper that impulse. However, the emergency declaration’s authorization of military action over the wishes of Congress creates a dangerous precedent. Without the crucial checks on executive power that the declaration undermines, presidents will be free to define for themselves what is “essential to the national defense” and fund it themselves, with little input from the people’s representatives in Congress. Such input is crucial for avoiding wars of choice, a heavier international military footprint, and changes in alliances based exclusively on the wishes of the president or the president’s political base.

What Does the Emergency Declaration Do?

Trump’s declaration obtains $3.6 billion of the funding for a border wall from the military construction budget, which amounts to more than a quarter of all military construction authorized for the fiscal year. Military construction is something Congress spends significant time debating, authorizing, and appropriating. The construction budget provides housing, schooling, and training facilities for U.S. forces around the world.

Notably, this national emergency is only the second ever to authorize military action, with the first being immediately after the 9/11 attacks. All other previous declarations were used to enact measures such as sanctions, trade regulation, or cutting off foreign military sales. The National Emergencies Act of 1976 permits the military action option to be used on construction projects necessary to support the armed forces and essential to the national defense. However, the armed forces have claimed no need for a border wall to support their operations, nor has the military or Congress determined that a wall is necessary to the national defense (and of course, Congress’ rejection of the border wall led to the recent government shutdown).

 

 

This particular emergency declaration allows the president unilaterally to define what is essential to the national defense, what is necessary to support the armed forces, and how to use those armed forces, as well as to use funds specifically authorized for other purposes. This represents a dangerous erosion in the separation of powers and in the standard formation of American foreign policy.

Undermining the Separation of Powers

There is a reason the framers of the Constitution divided power over foreign policy and national defense between the executive and legislative branches. While they recognized the president’s need to act without congressional deliberation in cases of invasion or imminent threats, they also knew the monarchs of Europe had long engaged in warfare for their own personal purposes, against the wishes of the people. The ability of presidents to engage in and finance their own wars would make them equivalent to those monarchs. Political scientists have shown that Congress can often stop major wars from occurring. Due to institutional constraints and the ease with which the people can hold it accountable, the legislature has generally been more hesitant to engage in conflicts than the president.

Congress’ ability to stall a president’s agenda is a feature of the system, not a bug. Compromise and gridlock are supposed to be the two available options, yet opposition from Congress is currently cited as reason to bypass the normal constitutional process.

Previous presidents have identified fundamental threats to the United States in the same way Trump views illegal immigration, but opposition from Congress kept those presidents from acting on their wishes. During Dwight Eisenhower’s presidency, the French requested U.S. assistance in Indochina, and the Eisenhower administration was sympathetic to the request. He went to a divided Congress for permission to back the French, but lawmakers refused to support an intervention. Eisenhower tried to provide limited support to the French to avoid ruffling congressional feathers. However, Congress objected yet again, and Eisenhower was forced to withdraw the small number of Air Force personnel he had sent to the region, likely stopping the onset of a major conflict (for a time).

Congress made a similar move in the 1970s to prevent U.S. funding of anti-communist forces in Angola, which some feared could turn into another Vietnam-style conflict. When Congress put an end to intervention in Angola, it was a disaster for the Ford administration and resulted in the firing of Henry Kissinger. In both situations, the U.S. president had significant investment in their anti-communist policies, but there was no going around the expressed will of Congress and the normal constitutional process.

Protracted conflicts like Vietnam and Iraq have also tended to wind down because of congressional pressure to withdraw funds. As the Vietnam War became increasingly unpopular, Congress acted repeatedly to investigate the war effort, limit its scope, and bring it to an end. It specifically prohibited the president from using ground troops in Laos, Thailand, and Cambodia in an effort to limit the war, and began to pass resolutions demanding troop withdrawals from Vietnam. When North Vietnam invaded the South after the American withdrawal, it was Congress that opposed a funding package from President Gerald Ford, preventing any re-engagement.

Likewise, after the Democratic wave election of 2006, Congress immediately put further funding for the Iraq War (and Secretary of Defense Donald Rumsfeld’s job) on the chopping block. New Senate Majority Leader Harry Reid demanded the president listen to Congress, saying “we are speaking for the American people. He isn’t.” President George W. Bush’s approval rating was already in the mid-30s, but he was unlikely to change the course of the war without institutional opposition from Congress.

My research shows that, without a check from Congress, presidents send more military forces to overseas bases. The institutional incentives of the presidency lead the executive to prefer more forces overseas because this expands bargaining power against rivals and in the negotiation of basing arrangements. Furthermore, these forces are closer to their missions and farther from American shores, allowing the president to use force at a moment’s notice without the need for congressional permission to relocate military personnel stationed at home bases. In contrast, members of Congress have incentives to keep troops in the United States because of the economic benefits they bring to congressional districts.

Foreign Policy Implications of an Emergency Declaration

The events in Eastern Europe over the past five years show how the separation of powers operates in debates over military deployments. After Russia invaded Ukraine and annexed Crimea in 2014, there was a bipartisan consensus that the United States needed to deploy military forces to Eastern Europe to support NATO allies. However, both parties also agreed that no forces would be redeployed from the United States itself. The only option was to increase the size of the defense budget to boost the size of the total U.S. military force and pay for new operations in Eastern Europe, but the parties could not agree on how the funding would be managed. The president and congressional Democrats wanted an increase in both defense and non-defense spending, and Republicans (through the so-called McCain Amendment) wanted only a defense increase. The ensuing logjam prevented any serious military response to the Russian aggression until at least 2017.

While many blamed Congress for the tepid response in Eastern Europe, movement of American forces into Eastern Europe could have created a more dangerous escalatory situation with Russia. The lack of agreement in Congress indicated that the people were not ready for such a move. If the president were simply allowed to declare situations like this a national emergency and rush U.S. military forces to a global hot spot without congressional deliberation, the global footprint of the U.S. military would likely increase and tense situations might be allowed to spiral without buy-in from the public. Without this check, and with increased numbers of forces abroad at their disposal, presidents may be tempted to use military power more often and for larger conflicts without sufficiently engaging the public. This is especially true if there is no need to request resources from a hesitant Congress, because the precedent has been set that presidents can redirect funds for anything they define as necessary for the national defense. This is unique the history of emergency declarations, as Trump’s is the only one that authorizes  the use of the armed forces for purposes Congress has specifically rejected. It stands in stark contrast to other emergencies, where the use of the armed forces was not authorized, or where (after 9/11) the emergency declaration was made before Congress could act.

Another salient area in which Trump’s emergency declaration could lay the groundwork for a more unitary foreign policy is alliances. Trump has already displayed antipathy toward America’s alliances, from NATO to South Korea. With more ability to singlehandedly define what is necessary for the national defense, Trump and future presidents will have a freer hand in negotiating and undermining alliances without congressional authorization, and further erosion in the separation of powers will undercut the credibility of U.S. commitments.

This idea is consistent with work on alliances, which shows that changes in a partner’s policymaking process are highly predictive of that state failing to live up to its alliance commitments. With the national emergency and its erosion of the separation of powers, the president may be able to “opt out” of, or otherwise weaken, alliance commitments whenever he or she deems it necessary for national defense. This could include presidents removing U.S. military personnel from allied countries, where forces are stationed to secure American commitment to treaties ratified by the Senate. Such a practice would undermine the credibility of American alliances.

Trump has made statements about his lack of willingness to back NATO’s Article 5 and reportedly contemplated withdrawing from the alliance altogether, despite Senate ratification of the alliance and repeated congressional resolutions attempting to prevent the president from abrogating the commitment. If the president can circumvent Congress by declaring a national emergency, it is plausible to see him using this power again when dealing with NATO or other defense commitments.

Trump is already doing three things that together undermine the separation of powers and, more concerningly, allow him to conduct an entire foreign policy without Congress. First, he is redirecting money that Congress has specifically authorized for other purposes. Second, he is using this money for purposes that Congress has already rejected. Third, he is using the armed forces to accomplish this task. While these moves may seem relatively innocuous in the context of building a wall, they set dangerous precedents for the power of the president to unilaterally make foreign policy without Congress, fund it without congressional approval, and use the armed forces to carry it out.

The separation of powers is crucial to a well-considered and steady foreign policy. The framers of the Constitution wanted important foreign policy decisions to be well-considered by a broad section of the American public through their representatives in Congress. Anything less than broad-based support from Congress and the American public is a recipe for a more volatile, expansive, and conflictual U.S. role in the world.

 

 

Andrew Stravers, PhD is a postdoctoral fellow in Government at the University of Texas-Austin, where he is also a Clements Center for National Security Research Fellow. His work has been published in Conflict Management and Peace Science, the Journal of Global Security Studies, The Diplomat, Duck of Minerva, and others.

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