President Trump’s declaration of a national emergency, made from the Rose Garden on Friday just before President’s Day weekend, did not come as a surprise to anyone following the debate over border security. In fact, the event was standard political theater, and everyone watching knows what will come next. As Trump said in an oddly sing-songy voice as he walked his audience through it, “We will have a national emergency. And we’ll be sued.” Eventually, he said, “We’ll win in the Supreme Court.”
Much of the coverage leading up to Trump’s announcement has appropriately focused on whether the situation at the border is, in fact, an emergency (it’s not) and on whether or not the precedent set by Trump using executive power to bypass Congress on this issue amounts to defining emergency down. Many conservative critics have warned (correctly) that the logic Trump used today in the Rose Garden could be used by a Democratic president to declare climate change a national emergency and fund a Green New Deal, for example.
But these criticisms overlook something about Trump, in particular, and presidential power in general: Presidents don’t care about precedent. In their first term, they care about reelection. If they win a second term, they care about legacy, and legacy is more about myth-making (or savvy post-presidential personal branding) than it is about the integrity of the office of the president.
Courts care about precedent, and Trump is right to flag the likely legal battle that will ensue over his declaration. But his attitude about his use of emergency power is no more or less sanguine than that of his predecessors. “It’s been signed by other presidents,” he said. “They sign it. Nobody cares.”
That’s not quite right. Americans have been fretting about the dangers of the “imperial presidency” since Richard Nixon left office, and critics on the left and the right have usefully thought through the ways in which Trump, in particular, has wielded executive branch power for good and for ill over the past two years. One of the many ironies of today’s announcement is that the authority Trump used to justify his declaration (The National Emergencies Act of 1976) was initially passed to curb executive power by requiring the president to outline specific plans for a solution when they felt the country had reached a state of emergency.
Given that our political culture is now in a perpetual state of fight-or-flight, Trump’s actions might be viewed as a dangerous exercise of imperial power. But you could also see it as yet more evidence of a particular Trump tic: Regardless of the issue at stake, Trump appears to care less about increasing the institutional power of the presidency than he does about winning that day’s news cycle.
This is why policy issues like border security are always framed in the same intensely personal way (using similar overheated rhetoric) as a battle of wills between himself and his enemies—and why he shrugs when it’s pointed out to him that the words he uses during these fights (in this case, talk of an “invasion” of immigrants, trafficked women with their mouths duct-taped, murderous criminal gangs) are needlessly inflammatory and counterproductive.
The enemies he is most intent on defeating aren’t the drug dealers and sex traffickers and criminals he claims are streaming across the border; it’s Congressional leaders who outmaneuvered him on funding for the Wall and were praised by the “fake news” media for doing so. That might be small comfort to people worried about an overly-powerful executive branch in the hands of a volatile populist, but it does remind us that some of their concern could be more productively directed at another branch of government that also isn’t doing its job the way the founders intended: Congress.