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Trump Is About to Declare a State of Emergency. What Does It Mean?

Trump’s pending declaration of a state of emergency isn't a show of power — it's a show of desperation.

Donald Trump speaks to the nation in his first-prime address from the Oval Office of the White House on January 8, 2019 in Washington, D.C. Carlos Barria-Pool / Getty

What does Trump’s pending declaration of a state of emergency, so that he can commandeer funds to pay for his wall, mean politically? What does it tell us about his power or powerlessness?

I’ve talked on many occasions about Steve Skowronek’s theory of presidential power. In that account, presidential power is dependent on two factors: the strength and resilience of the existing regime, and the affiliation or orientation (supportive or opposed) of the president to that regime. The strongest presidents are those who come to power in opposition to an extraordinarily weak and tottering regime, who shatter that regime and construct a new one. Think Lincoln, FDR, and Reagan. The weakest presidents are those who are affiliated to a weak and tottering regime, and completely saddled with their affiliation to that regime. Think Herbert Hoover and Jimmy Carter.

There’s one part of Skowronek’s argument — a third factor, if you will — that I’ve not talked about. That is the organizational resources that a president has at his disposal. Where Skowronek’s theory of regimes and affiliations is cyclical — regimes rise and fall — the organizational element of his theory is linear. The organizational resources of the presidency grow over time. Early in the history of the American state, the material resources presidents had at their disposal were few; with time, they became many. Reagan had far more resources than Lincoln had or than Jefferson had, merely because of the expansion of the state apparatus itself.

One of the most fascinating twists in Skowronek’s argument is that the steady expansion of state power, the growth of material resources, works differently for different types of presidents.

For presidents who are in the strong or realignment position — Reagan, etc., back to Jefferson — there are more resources at their disposal over time. Reagan has more material power than Lincoln had. But there are also more resources available to state actors who would oppose these presidents. So Skowronek argues that if you compare Jefferson to Reagan, you’ll see that despite Reagan’s possession of greater material and organizational resources, Jefferson had far more political power and room for maneuver than Reagan did. Jefferson’s reconstruction of the political universe was far more comprehensive than Reagan’s — Reagan was never able to get rid of Social Security or Medicare, he tried to launch a new Cold War but wound up having to illegally fund the Contras because Congress would not allow him to do it legally, and so on — precisely because the state apparatus under Jefferson was not as strong as the one that was under Reagan. Which meant that Jefferson’s opponents had equally fewer resources to oppose him. Jefferson’s opponents, the Federalists, had the courts, and that was about it. And with time, and more judicial appointments, that went away, too.

But for presidents who are the in Carter/Hoover position — and this also includes John Adams and John Quincy Adams — the expansion of the state apparatus has the opposite effect. Though those presidents are in the weakest political position possible, over time, they are able to do more, despite their weakened position, precisely because there is so much more material and organizational power at their disposal. Yes, their opponents have power, too, but that power is not nearly as effective as the other kind of power their opponents have, namely, the political power that comes under a tottering regime.

So Carter, despite his very weak position, is able to do unbelievable things, things Jefferson (in a strong position) could only have dreamed of. Despite the tottering of the New Deal regime, there is still enough belief in government under Carter that he’s able to get two new Cabinet positions and departments (Energy and Education). He’s able to launch a military buildup. He’s able to deregulate whole industries. Most potent of all, he gets Paul Volcker at the Fed. John Adams and John Quincy Adams, who were in comparable positions, scrambled to do anything; Carter, despite being in the same position, is able to do a lot.

Now we come to Trump and his declaration of emergency.

From a political point of view, the situation looks like that of a classic weakened presidency. For two years, while his party had control over Congress, Trump got not a single dollar for building his wall. Amid the debacle of the shutdown (more on that in one second), it’s easy to forget that while Trump did manage to extract $1.375 billion from a Democratic-controlled House to build 55 new miles of wall, he could not even get that from a Republican-controlled Congress.

After his first two years in office, Trump played what he thought was his strongest suit: he provoked the longest government shutdown in American history hoping to finally get Congress to do what he had not yet been able to get it to do. Despite that power play, he came out with even less than he had going into the fight in December.

These are signs of classic presidential weakness. Remember, Trump staked his entire reputation on winning the midterms over the issue of immigration and the wall. His message heading into the November elections was as clear as it was crude: “If you don’t want America to be overrun by masses of illegal immigrants and massive caravans, you better vote Republican,” he said in a campaign speech. Well, the voters heard him, and cast their ballots accordingly, leading to the Democrats’ largest midterm gain since Watergate.

Losing big on a signature issue, not once, not twice, but three times — during the first two years when the Republicans controlled Congress; during the midterm elections; and then, with the shutdown — is a classic sign of what Skowronek calls presidential disjunction.

Like Carter, Trump is in a very weakened position. His ability to define the political field has been almost minimal.

Yet, like Carter, Trump is the beneficiary of the increased resources that are available to a president.

Over time, Congress has granted the presidency the power to declare national emergencies. Though the 1976 National Emergencies Act was meant to constrain the president, it hasn’t worked out that way. As Elizabeth Gotein of the Brennan Center writes in the current issue of The Atlantic:

 Under this law, the president still has complete discretion to issue an emergency declaration—but he must specify in the declaration which powers he intends to use, issue public updates if he decides to invoke additional powers, and report to Congress on the government’s emergency-related expenditures every six months. The state of emergency expires after a year unless the president renews it, and the Senate and the House must meet every six months while the emergency is in effect “to consider a vote” on termination.

By any objective measure, the law has failed. Thirty states of emergency are in effect today—several times more than when the act was passed. Most have been renewed for years on end. And during the 40 years the law has been in place, Congress has not met even once, let alone every six months, to vote on whether to end them.

As a result, the president has access to emergency powers contained in 123 statutory provisions.

Trump is now pushing the presidency’s organizational resources, in the form of presidential emergencies, to their limit. Like Carter, he’s got resources at his disposal that John Adams did not have. But as was true of Carter, Trump’s dependence on those resources is not a sign of strength but weakness.