The caravan, the caravan! Runferyerlives!

Presidents typically invoke emergency powers to impose sanctions on foreign individuals, groups or nations that threaten national security, though they have also been used domestically amid public health crises and to regulate exports.

Since the National Emergencies Act was passed in 1976, seven presidents have declared dozens of national emergencies, and 32 are still active.

Despite the legal ordinariness of what Trump has done here, the context in which he acts, and the way he acts, makes the situation seem, and in fact be, much worse.

Trump is acting in perhaps the most divisive contexts in American politics, one filled with severe anxiety or worse on all sides, and one exacerbated by Trump’s scorched-earth approach and by the longest-ever government shutdown as a result of this very issue. Any unilateral presidential action in this context is bound to be controversial.

Making a bad situation worse, Trump, as is his wont, is purposefully creating a large drama that includes flouting conventional norms associated with presidential power. His press conference announcing the declaration of emergency was a doozy that contained numerous statements that smashed norms of presidential etiquette. But perhaps none more so than this one:

I could do the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster. And I don’t have to do it for the election. I’ve already done a lot of wall for the election. 2020. And the only reason we’re up here talking about this is because of the election—because they want to try to win an election, which it looks like they’re not going to be able to do.

Here Trump did two things in connection with the exercise of emergency powers that presidents never do.

First, in stating that he “didn’t need to do this,” Trump acknowledged what so much of the run-up to his proclamation makes clear: there is no necessity in his action, and thus no “emergency” in the ordinary language sense of the term. As noted above, this is typically true of emergency declarations. But presidents don’t admit it, much less celebrate it. They tend to make emergency declarations in ways that do not highlight that the entire modern law of emergency power rests on the fiction that emergency powers can be invoked in the absence of what we normally think of as an emergency.

Second, in clumsily denying that the emergency declaration is about politics and the 2020 election, Trump confirmed what many people think: It is about politics and the 2020 election. That acknowledgment heightens and for many will confirm suspicions about mixed motives, pretext, and the like.

Trump is not by a mile the first president to invoke executive power aggressively for political purposes. But he might be the first plausibly to be seen to exercise emergency powers openly for political purposes. In this regard, as in many regards, Trump is undisciplined in his lack of hypocrisy. As I explained a few years ago:

A corollary to Trump’s shamelessness is that he often doesn’t seek to hide or even spin his norm-breaking. Put another way, he is far less hypocritical than past presidents—and that is a bad thing. Hypocrisy is an underappreciated political virtue. It can palliate self-interested and politically divisive government action through mollifying rhetoric and a call to shared values. Trump is bad at it because he can’t “recognize the difference between what one professes in public and what one does in private, much less the utility of exploiting that difference,” Henry Farrell and Martha Finnemore have noted in Foreign Affairs. He is incapable of keeping his crass thoughts to himself, or of cloaking his speech in other-regarding principle.

This is a counterintuitive idea. Many people see Trump as hypocritical since he often says one thing and does another (including things that he criticized his predecessor for). But he is profoundly not hypocritical in this sense: As in his border wall announcement, he is often guileless in asserting power, and doesn't try to hide the tension between his political aims and his asserted constitutional justifications. This is one of Trump’s most remarkable and persistent norm violations. “The clearest evidence of the stability of our values over time is the unchanging character of the lies … statesmen tell,” Michael Walzer famously noted. “They lie in order to justify themselves, and so they describe for us the lineaments of justice. Wherever we find hypocrisy we find moral justice.” Walzer might have added that when we see in our statesmen an absence of hypocrisy in a contested context where principle normally matters, an absence of moral justice creeps in.

Trump’s lack of hypocrisy in the current context is harmful for at least two reasons.

First, it will hurt him in court. His acknowledgement that his emergency is not “real,” and his openly political motivations, will make it harder for judges—and especially the Supreme Court justices whom he said during the press conference he hopes would rule his way—to uphold his order. This is so in part for doctrinal reasons: The president’s integrity and truthfulness, and the possibility that he is acting pretextually based on an illicit motive, will be front and center in this litigation. And it is so in part for what might be called political or atmospheric reasons. Courts don’t like to be seen as pawns asked to indulge obvious fictions in the exercise of executive power in controversial contexts. But that is the situation the courts are now in.

These elements were, of course, present in the travel ban litigation that Trump in the end won. Trump in a blunt, ungainly way asked the Supreme Court to once again bail out his poorly rolled-out and controversial Executive proclamation, and he did so in a way that stripped away the fictions that normally accompany emergency powers. Acknowledging that there is much legal analysis yet to be done, the justices will have a harder time upholding this proclamation due to Trump’s performance. If the Supreme Court on top of its travel ban ruling follows a traditional legal analysis and also affirms Trump’s emergency action concerning the wall, it risks setting a super-bad precedent for openly opportunistic and pretextual presidential emergency action going forward. But to reach another result the Court might have to put a serious dent in presidential authority that will adversely affect future presidents who legitimately need this authority. Trump has put the Court in a terrible position.

The second reason Trump’s actions are harmful is that the broader legitimacy of the presidency that wields such vast powers over so many lives depends on presidents who present and exercise those powers with at least a modicum of decorum, modesty and attention to rule-of-law values. As I have argued in two books, one of the great mistakes of the George W. Bush presidency was the tendency to act on the basis of an open desire to expand presidential powers—something most of the main players, including President Bush, later regretted. Trump’s performances make the performances of the Article II chest-thumpers in the Bush administration seem restrained by comparison. To be clear, the Bush team invoked Article II powers in substance much more aggressively than Trump. But their public rhetoric, while damaging to the presidency, was not, I think, as damaging as the impact of Trump’s openly politically self-regarding rhetoric. This is a hard thing to prove or even know for sure. But it is not necessary to decide whether the Bush or Trump rhetorical strategy was worse to know that Trump’s corrodes the presidency.

Trump’s utter lack of hypocrisy in the aggressive exercise of presidential power is a clarifying moment for the nation. His inability to withhold his private motivations, combined with his willingness to push the presidential envelope in controversial ways, combined with his unsteady grasp of his office and worrisome judgment in wielding his massive powers, has shined the brightest of lights on how much power Congress has given away, and how much extraordinary power and discretion presidents have amassed. After Trump, and due to him, there will be a serious reckoning with this constitutional arrangement like no time since the 1970s, and possibly ever in American history. Whether the Congress and the nation can do anything about it is another matter. I have my doubts.