A dangerous precedent (Financial Times)

THE EDITORIAL BOARD

Shortly after declaring a national emergency, Donald Trump boarded Air Force One for Mar-a-Lago. It was a fitting next step to an emergency that was always grounded more in Mr Trump’s imagination than reality. Had it been genuine, Mr Trump would not have flown off for a weekend of golfing. Yet in his rambling announcement, Mr Trump had already undercut his own case. The emergency was not strictly necessary, Mr Trump admitted. It was motivated by the next year’s presidential election in which Democrats would try to defeat him by saying he did not keep his promises. The main one of these was his vow to build a border wall. “I didn’t need to do this, but I would rather do it [build the wall] much faster,” said Mr Trump. There, in a nutshell, was the basis on which the US courts should declare Mr Trump’s move illegal. On his own terms, the emergency is smoke and mirrors.

There are also basic legal grounds to reject Mr Trump’s move. The US constitution makes it clearly that it is Congress, not the president, which controls the purse strings. It is the president’s job to faithfully execute the law. Under the law, which Mr Trump simultaneously signed on Friday, Congress allocated $1.375bn for border security. By vowing to divert up to $21bn from other government departments to build a wall, Mr Trump is explicitly breaching the US separation of powers. Such a move could pass muster where there is a genuine national security threat. Mr Trump will have a tough job explaining how the US-Mexico border situation suddenly qualifies as such. Illegal immigration into the US has fallen sharply in the last decade to just over a fifth of where it was at its peak. Moreover, native-born Americans are far more likely to commit a crime than newcomers, illegal or otherwise. Most illicit drugs come through legal border crossings. And so on.

It is possible Mr Trump actually wants the US courts to throw out his emergency. That would give him a springboard to run against meddling judges and politicians in 2020. “The people against the system” would have a Trumpian ring to it. It would also ensure Mr Trump continues to dominate the conversation. As long as it is about him, he is winning. But that is no reason to let him act with impunity. It would set a chilling precedent if the courts upheld Mr Trump’s action. If a US president can manufacture a national crisis from a modest flow of asylum seekers, he would gain license to declare a permanent one. Almost anything would qualify as long as it passed the test of whatever the president saw fit. Richard Nixon infamously declared: “Well then, if the president does it, it’s legal.” America’s system is based on the principle that laws are bigger than people. Mr Trump cannot be an exception ...

https://www.ft.com/content/2d66995e-3117-11e9-8744-e7016697f225