02:14 - Source: CNN
Amid legal challenges, Trump declares national emergency

Editor’s Note: Samantha Vinograd is a CNN national security analyst. She served on President Obama’s National Security Council from 2009-2013 and at the Treasury Department under President George W. Bush. Follow her @sam_vinograd. The views expressed in this commentary are her own. View more opinion articles on CNN.

CNN  — 

Every week, I offer a glimpse of the kind of intelligence assessments that are likely to come across the desk of the President of the United States, modeled on the President’s Daily Briefing, or PDB, which the director of national intelligence prepares for the President almost daily.

Here’s this week’s briefing:

 Sam Vinograd

Whether or not President Donald Trump’s national emergency declaration with respect to our southern border is ever implemented, it will impose a great cost on US national security.

And, it’s worth noting, the national emergency declaration comes shortly after a US government shutdown. The shutdown alone cost the US economy billions of dollars and hamstrung US national security by allowing serious threats to go unanswered for weeks, while hundreds of thousands of federal workers were furloughed or unable to fully perform their roles.

The shutdown and the national emergency – along with the deployment of thousands of troops to our southern border – are a massive resource diversion to address an emergency that even the President himself said he didn’t have to declare. These actions may hurt the credibility of a bedrock of our democracy – the separation of legislative and executive powers – and put the American people at risk.

Emergency preparations are costly

If the emergency is implemented, billions of dollars will be spent on it rather than on military construction and counter-narcotics programs that congressional appropriators originally intended.

But just preparing for each national emergency is incredibly costly, too.

Nearly five dozen national emergencies have been declared since the National Emergencies Act was passed in 1976 – and getting a national emergency declaration ready is usually a time intensive process.

It’s also a process limited by finite resources. There are only so many US government personnel available to participate in identifying a national emergency and what resources the President needs to have to address that emergency. There are also only so many White House lawyers available to draft and vet the emergency declaration.

Typically, a national emergency declaration involves people at various levels of the government, often working with the intelligence community, to develop the case for the national emergency. This team presents it to the President, and then develops an outreach plan that explains the emergency to Congress and other foreign counterparts.

Given that the intelligence community did not identify the situation at our southern border as a major threat in their worldwide threat assessment at the beginning of 2019, it is unclear whether they were involved in the interagency process leading up to Trump’s emergency declaration. It is equally unclear whether there was any substantive interagency process to prepare the national emergency declaration.

But we do know that the Department of Defense, for example, had to work with the White House and spend time and resources identifying sources of available funding for the border wall – including potentially $3.6 billion in military construction funds and another $2.5 billion in counter-narcotics funds.

Even while the national emergency goes through its likely lengthy legal battles, these resources will not be spent where they were originally planned, including on programs that were likely already underway.

Oddly enough, the Acting Secretary of Defense Patrick Shanahan even said this weekend that he doesn’t yet know whether he’ll even be able to determine whether military construction funds can legally be used to fund the border wall.

Legal battles are time consuming

Trump himself anticipated the legal challenges ahead, as he listed the winding road to the Supreme Court that he expects his national emergency to take. The first lawsuits were filed hours after the declaration. And the White House Counsel’s Office is likely preparing for a protracted fight.

Every legal challenge to the national emergency – and there will be many – requires time and attention from US government lawyers. Once again, this means they will have less time to focus on other work, including potentially preparing national emergencies that the intelligence community and law enforcement assess really impact US national security.

Confronting Congress has a cost

Lawmakers on both sides of the aisle have voiced their opposition to the national emergency, and there are a number of ways for Congress to proceed. Members may try to pass a resolution of disapproval or a resolution of termination to end the national emergency. Congress can also try to draft legislation preventing Trump from spending the funds he’s trying to re-appropriate for his emergency.

Any of those measures will take a lot of their time, which members of Congress would otherwise be spending on other initiatives. It’s unlikely any of these would pass in the Republican-controlled Senate, and overriding a Presidential veto would require two-thirds majorities in both chambers.

Members can also call for investigations and hearings with officials like Secretary of Homeland Security Kirstjen Nielsen and Acting Secretary of Defense Patrick M. Shanahan. And so, all in all, they will have less time and capital available for use on other pressing issues like 2020 election security, counterterrorism and more.

Regardless, President Trump has set himself up for another fight with Congress, which means his team will have to spend time and political capital making their case to Congress and trying to convince members to focus their attention elsewhere.

Abusing power isn’t free

Legal challenges to the national emergency include allegations that the President is abusing the separation of powers enshrined in our Constitution by appropriating funds despite Congress’s constitutionally mandated authority to do just that. It’s important to note that Congress allotted $1.375 billion for border security – significantly less than the additional $6.7 billion Trump is planning to use.

The national emergency declaration fuels Trump’s image around the world as someone who is willing to do whatever he wants, regardless of whether anyone else thinks that it is legal or warranted. It’s a hit to his credibility, and it could lead our enemies to try to distract him by getting him to focus his attention on issues (especially issues he talked about during the campaign) that aren’t really national emergencies but that suck up time, attention and resources.

Undermining our democratic order is an objective for countries like Russia, and we should expect Russian bots and trolls to amplify divisions over Trump’s declaration.

This also has a recurring cost

Trump has set a new precedent for national emergencies. His predecessors have used their authorities under the National Emergencies Act largely to respond to situations abroad and in President Barack Obama’s case, to the H1N1 pandemic.

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    Many critics have already likened this to opening Pandora’s Box. A future Democrat in the White House could end up following his lead and declaring a national emergency for climate change, gun control or other issues that matter to the party.

    Regardless, it is clear that what starts with Trump won’t end with Trump – and that the cost of this process is the security of the American people.