Three Things Christians Need to Know about the Border Wall Emergency

The wider the door swings open to presidential exercises of power that fly in the face of the constitutional protection of the separation of powers, the harder it will be to undo the change in the fabric of our democratic form of government.

Christians, evangelical and otherwise, are on both sides of the wall debate. I have my own firm convictions based on hours of studying the Scriptures for help. But this blog isn’t about the propriety of building a wall on the southern border; it’s about the declaration of an emergency to get it done. We need to be wise. We should not be rash. “He who hurries his footsteps errs” (Proverbs 19:2); and “Do not go out hastily to argue your case; Otherwise, what will you do in the end, When your neighbor humiliates you?” (Proverbs 25:8) Following are three things that Christians should consider about the declaration of an emergency to build a border wall.

  1. Rule of law

As many Christians who advocate for the wall to keep out illegal aliens, the rule of law is important. It’s the foundation of a civilized, free society. Though Christians have sometimes taken a stand against laws, like laws that protected slavery and abortion, Christians generally support the rule of law. (Obviously, when faced with following man’s law and God’s law, we must choose rightly.)

Give to Caesar what is Caesar’s is the model established by Jesus. God puts rulers in place, and laws are an extension of that authority. In the United States, the rule of law includes the fundamental, constitutional doctrine of the separation of powers. The separate of authority of each of the three branches of the federal government is designed to ensure that no rogue faction in any branch of government can take over.

Congress has the sole authority to appropriate money. Other presidents have declared national emergencies, but none have used that power to reallocate billions of dollars that Congress refused to approve.  Many Christians rightly criticized the methods used by President Obama to circumvent Congress.  They rightly complained of the “imperial presidency”, but Obama never crossed the line that Donald Trump just crossed.

In fact, nothing Obama, or any other President, has ever done has gone as far as Trump just went to ignore the power of Congress. While the use of presidential powers has long been stretching, presidential powers have arguably been stretched farther than ever stretched before with the declaration of an emergency to build a wall at the southern border. We need to be very cautious in our support of action that ignores the rule of law in our country.

  1. Moving into Uncharted Territory.

While the Constitution is clear in regard to the separation of powers, the National Emergencies Act, 50 USC 1601 – 1651, which was passed in 1976 to curb executive power, doesn’t define a national emergency. It only provides parameters and develops a process for Congressional notice, override, and authority to declare an emergency, generally.

The lack of specificity leaves a loophole.  The declaration, itself, may not be unlawful in that sense, but carrying out the actions in support of the declaration is another matter.  Where is the statutory basis for reallocating funds to construct a wall along the southern border? Where is the authority to usurp this power that the Constitution places in the Congress?

Maybe President Trump is relying on the Military Construction Codification Act.  This statute allows a President to authorize projects to support engagement of the armed forces.  Is policing our southern border a military action?  The jurisdiction falls to ICE and border patrol, not the military.  Seizing private lands by eminent domain and militarizing the border are extreme military actions. Is a declaration of war appropriate? If not, then reliance on this legislation for authority falls short.

Maybe Trump is relying on 33 USC Section 2293 for the diversion of funds for an authorized project essential for national defense.  Congress did authorize funds for the construction of a wall, but not as much as the President wanted.  They have authorized only limited funds to be diverted.  When push comes to shove, the facts don’t support a case that a wall is necessary for national defense, especially not as an emergency.  The reality is that crossings have been decreasing over the last decade.  The President even admitted that he didn’t need to declare an emergency, but he wants to do.  As an attorney who has handled emergency matters in court, I can tell you that I would be hard pressed to make an argument for an emergency with a straight face in a case like this.

  1. The precedent is dangerous.

More importantly, though, this is dangerous precedent. We can’t just think about what is expedient at the moment. If we support Trump in ignoring and trampling over congressional power, where does it stop?  When a Democratic President enters office in the future, what is next? What climate change rules or gun control policy will be declared a national emergency?  Regardless of the nuances in the factual statistics, there are more deaths directly traceable to guns, than illegal immigrants (which make up only a subset of gun related violent offenders). It isn’t a stretch to imagine similar justification for emergency declarations for any number of things.

Our system of government is designed intentionally to avoid the abuses and injustices that can be perpetuated by a rogue king.  The powers of the President are limited.  Primary power is vested in Congress (Article I of the Constitution).  This is because Congress is more representative of the people.  Individuals (like kings) are more apt to make impulsive decisions, but legislative bodies, by design, are not.  This is why Congress, alone, was given the power over the appropriation and use of money.

If we support Trump in the usurpation of Congress’s authority over the national budget, we participate in the erosion of our separation of powers protection. We lose credibility in criticizing future presidential power grabs to force money to be spent on measures Congress has not approved.  We can’t have it both ways. It will come back to haunt us.

Are we willing to live with the consequences? The wider the door swings open to presidential exercises of power that fly in the face of the constitutional protection of the separation of powers, the harder it will be to undo the change in the fabric of our democratic form of government. We have to think of the future. I said this during the Obama presidency, and it needs to be said again.

Imagine the person you would least want to be president. Pendulums swing in politics and government. For every one or two Republican presidents, there are one or two Democratic presidents to follow. Would you want your worst nightmare exercising the kind of unchecked, presidential power that Trump wants to use?

If one president can declare a wall a national emergency, another president can declare the plight of undocumented aliens who suffer more crime than citizens (because they fear to report it) a national emergency. Because undocumented aliens don’t report crime, crime festers and grows unchecked. It isn’t far-fetched to imagine a similar exercise of presidential power in the other direction. This is why we have checks and balances.

Are we willing to throw away those checks and balances to support a president who is unwilling to live by them? Are we willing to redraw the line in the sand at a border wall? Is this the most pressing issue of the day facing Christians? Are we willing to lose ground in other areas in the future (like abortion, euthanasia, government crackdown on business, increased taxes, education in schools, etc.) by supporting this precedent to get a border wall?

Not all Christians support the border wall. Not even all evangelical Christians support the border wall. Are we willing to die on this hill? Are we willing to mortgage our future on a border wall? What if, when we get to the gates of heaven, Jesus says, “I was a stranger; why didn’t you welcome me?” (Matthew 25:43) This is not an issue that is so clearly defined for the Christian that we should be willing to risk the opening of Pandora’s Box to future presidents.

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