President Trump’s declaration of a national emergency has caused a bit of a national emergency itself. The president has decided to make the Southern border wall his legacy and if the democratic congress will not give him the money needed, he plans to go around them with the use of a national emergency. A lot of information is flying around, and I am happy to see some of it is historical. Much of the focus is on past emergencies and if what Trump is doing is different. I have written several times on the issue of executive orders, and national emergencies are very similar. I believe most orders are against the spirit, if not the letter, of the Constitution and separation of powers. However, the question is have we seen similar circumstances in the past. The answer is yes and no.
Recently we have all learned a great deal about national emergencies, and many have been surprised to learn they are in fact quite common. There have been 59 declared and, more surprising, 32 are still active. Republicans have focused on the twelve passed by President Obama. The Democrats have focused on the nature of Obama’s emergencies. None of which went against the wishes of Congress and were mostly sanctions against enemy nations, but they were still actions without congressional approval.
The most talked about national emergency is the failed attempt of President Truman to nationalize the striking steel industry during the Korean War. The President believed the strike would hurt the U.S. war effort, which constituted a national emergency. The Supreme Court disagreed.
During our current national crisis, the focus on Truman is obvious, but what about times when the president acted outside of Congress and the courts did not intervene. I will name two.
Most Americans saw a canal across Central America as essential to our naval success. When a French firm in Panama failed in its attempt to build the canal, President Theodore Roosevelt jumped at the chance to purchase the project and complete it. The only problem was that Columbia, who at the time controlled Panama, did not want to sell to the Americans. For the sake of space, I need to simplify this greatly, but basically Panama declared independence from Columbia at the same time the U.S.S. Nashville sailed to Columbia and the U.S. recognized Panama’s independence. To no one’s surprise, the new Panamanian government turned around and offered America the canal project.
The new problem for TR was that Congress had not approved any of this, including building the canal. Roosevelt saw the canal as a national emergency and knew that involving Congress would only slow things down, so he acted alone. Roosevelt said that if he acted properly, Congress would give many excellent speeches, but the project would be delayed fifty years, so instead TR said, “Fortunately the crisis came at a period when I could act unhampered. Accordingly I took the Isthmus, started the canal and then left Congress not to debate the canal, but to debate me.”
A second example comes from the man considered American’s greatest president: Abraham Lincoln. In 1860, Lincoln ran his campaign on stopping the expansion of slavery, not outlawing slavery where it was. In his inaugural address, he claimed that not only did he have no desire to free the slaves, but he did not have the constitutional right to do so. Yet, two years later he had a change of heart. In 1862, Lincoln came to the conclusion that the best way to win the war was to issue the Emancipation Proclamation, freeing the slaves in the rebellious states. Taking away the south’s work force would damage its war effort.
As popular as Lincoln is today, issuing the Emancipation Proclamation was extremely unpopular. The Democrats in Congress were outraged at what they saw as tyranny. Lincoln was even attacked as a usurper of power, and that was from his own party. Even members of his cabinet saw his decision as unwise and tried to talk him out of it. Yet Lincoln went against his cabinet, the conservative members of his party, and the Congress and issued the Proclamation. Before the Courts could take up his decision, he pushed through the 13th Amendment, making the court’s decision on the Proclamation moot.
The examples of Lincoln, Roosevelt, and Truman clearly show that Trump is not the first to make decisions based on what they saw as emergencies. You can claim that Lincoln and Truman acted during a time a war and thus their actions were emergencies, but not Roosevelt. So if the answer is Trump is not the first. The no is because everything changed after 1976 and the passage of the National Emergency Act.
Coming off the Vietnam War and the Nixon years, congress wanted to rein in the power of the president with the 1976 Act. With the Act, presidents need to justify the emergency to Congress and Congress can reverse an emergency with a joint resolution and an override of a veto if necessary. Congress is also supposed to review the emergency every six months, something that is rarely done.
So how does all this answer our question? Is Trump the first president to use emergency powers to act against the wishes of Congress? No. Is he the first to act when many do not see a perceived emergency? No. Is he the first to do so since the 1976Aact? Possibly. Yet this Act does not say he can’t, just that Congress can stop him if they have the numbers. I am not saying Trump is right to divert money to build the wall. The precedent does seem dangerous. So make your arguments for or against the wall, but make sure your argument is correct.
Dr. James Finck is an Associate Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. Follow Historically Speaking at http://www.Historicallyspeaking.blog or Facebook at @jamesWfinck.