Here's why Trump's emergency declaration will fail — even though past presidents got away with it: Harvard Law professor

A Harvard Law professor and co-founder of the Lawfare blog pointed out Friday that prior presidents declared national emergencies when no emergency was evident — but that Donald Trump's has one key difference that makes it likely to fail.

Presidents, Harvard Law professor Jack Goldsmith tweeted, have "always had discretion" when it comes to emergencies and "they’ve often declared emergencies under circumstances short of necessity, to address a real problem but not an emergency as understood in common parlance."

In 1992, influential George W. Bush administration official John Yoo and his colleague Harold Hongju Koh wrote in the Berkeley Law Scholarship Repository that presidents "have declared national emergencies with little regard to whether a real emergency has actually existed."

As Goldsmith noted, that statement "has not changed" in the three decades since the paper was published.

With his national emergency declaration over the border wall Friday, Trump is continuing to build "on very broad congressional delegations and past presidential practices," the Harvard Law professor wrote.

Nevertheless, Trump showed his hand in ways other presidents haven't — and that might make all the difference.

"Trump makes what he is doing seem, and in reality be, much worse because he suggests openly that there is no real emergency ('I didn’t need to do this'), instead of (as past presidents did) hiding the ball or using more effective rhetoric in a less divisive context," Goldsmith wrote.

Quoting an Atlantic article he wrote in October 2017, the professor noted that Trump, time and again, "hurts himself – legally if not otherwise – by his lack of hypocrisy."

"As in many contexts," Goldsmith concluded, "Trump by his willingness to push the envelope, combined with his shamelessness and lack of hypocrisy, shines the brightest of lights on how much power Congress has given away, and how much extraordinary power presidents have amassed."

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