When Donald Trump couldn’t get the money he wanted through Congress to support his fiction of a border invasion, he dragged out the National Emergency Act and simply obtained that money … by taking it away from funds supposed to build housing, hospitals, and schools for U.S. troops and their families. Confronted by the fact that his “I hereby order” that American companies should immediately stop doing business with China was laughably outside the scope of his authority, Trump responded on Friday evening by threatening to invoke the Emergency Economic Powers Act of 1977.
If you were searching for the answer for “Gee, how could Donald Trump make the world even more economically unstable as he heads off to a G-7 he didn’t even want to attend?” the answer is—threaten to actually block trade with China under the pretense of an "unusual and extraordinary threat... to the national security, foreign policy, or economy of the United States."
The Emergency Economic Powers Act has been invoked more than two dozen times since it was signed into law, but the reasons that it has been invoked are critical. The names of the countries that have been at the pointy end of this act—North Korea, Iran, Iraq, Syria, Libya—have been sanctioned at a point when they were engaged in acts seen as encouraging terrorism or attacking neighboring countries. The act has also been invoked globally on several occasions to limit trade in specific technologies, particularly those used in cyber-enabled espionage.
However, it has never been used for an occasion in which a the United States couldn’t get its way in a trade deal. And even if it was … this act doesn’t do what Donald Trump seems to believe it does. The Emergency Economic Powers Act was created to restrict the powers of the executive, which had been given carte blanche to lock down assets and restrict trade under the Trading With The Enemy Act that went back to World War I. This wasn’t an act to give the president more power over American companies. It was an act to give him less.
The Emergency Economy Powers Act was created to restrict executive authority only to declared emergencies originated outside the United States. And that authority is limited to blocking or freezing the assets of foreign government or foreign nationals connected to those governments. To make this happen now, Trump would have to declare that China was engaged in some action that created an "unusual and extraordinary threat” which … oh, hell. Of course he would.
To bolster his claims of an emergency on the border, Trump took a two-pronged approach: pass regulations that created a genuine human-rights emergency on the border by design, and lie. Also lie more. Why do we have federal troops along the border and money being wasted on the world’s ugliest fence? Because black vans driven by coyotes that turn left, then left, but never right, are filled with women and duct tape. That’s why.
And mostly because Mitch McConnell and the Republican Senate wouldn’t stand in Trump’s way if he declared a national emergency to bomb Canada for failing to hand over Nova Scotia. After all, the colonel’s restaurants may just be KFC these days, but there is still a Kentucky chicken.
Declaring a national emergency, freezing Chinese assets, and ordering companies to halt trade with China under threat of criminal prosecution would be more than an extraordinary intrusion of the government into the economy, it would be the largest non-wartime action ever taken to direct or restrict American industry. It would also be a dead certain economic disaster.
Just as with Trump’s emergency declaration on the border, it’s easy to believe that someone, somewhere, either in Congress or in the courts, might be able to stand up and declare that this is not how the law was intended. Surely Trump would get a smack and be sent back to his room to sulk. This isn’t an emergency. This isn’t something that only originated in a foreign country. This isn’t any of the things that the Emergency Act was intended to deal with. Anyone could see that Trump is misusing a law to a ridiculous extent and abusing his authority in every dimension.
Yep. And how’s that working out on the border?
The Emergency Economic Powers Act was absolutely not designed to be a tool in trade negotiations. Using it as such would be a gross distortion of the law, the limits of executive power, and every written and unwritten rule that acts as a wall between the government and American enterprise. Trump will break that wall willingly, gleefully. No matter the cost. Because he wants to.
Because that’s how it looks when a government is based on tantrums.