Trump Declares National Emergency
By Jim Owen
President Trump has invoked a national emergency as a way to fund construction of a wall along the U.S.-Mexico border.
He resorted to using the executive power after being frustrated in his attempts to persuade Congress to allocate the money required for the wall. A budget bill crafted by a House-Senate conference committee contained $1.375 billion for 55 miles of fencing – far short of the $5.7 billion that Trump requested. The president reluctantly signed the legislation to prevent another government shutdown.
Many federal offices closed for 35 days in December and January because Trump rejected a previous spending bill that provided no funding for the wall. The president eventually signed the measure, which reopened federal offices for two weeks, but vowed to continue fighting for his signature campaign promise.
Trump told reporters that “one way or the other,” the government would “confront the national security crisis” on the border. At the same time he signed the second spending bill, the president announced his national emergency. White House officials said the plan was to shift $8 billion from other parts of the federal budget to finance wall construction.
What Is a National Emergency?
A crisis that represents a threat to the United States and requires a prompt response qualifies as a national emergency, according to the U.S. Constitution. However, the document’s authors were vague in specifying the circumstances under which a president may declare an emergency.
Two hundred years after the drafting of the Constitution, Congress passed – and President Gerald Ford signed – the National Emergencies Act of 1976 to clarify the Founding Fathers’ intentions.
Defining a national emergency entails consideration of a number of factors – like the separation of powers, and checks and balances, that prevent any one of the three governmental branches (executive, legislative and judicial) from becoming more powerful than the others.
The 1976 act confirmed the president’s authority to expand the office’s power by invoking a national emergency, but mandated a specific reason for the action. There are hundreds of clauses in the law that a president could cite to justify an emergency declaration, the Congressional Research Service reported in 2007.
The agency wrote that the power should be used only when the nation is “threatened by crisis, exigency or emergency circumstances” – not including natural disasters or wars.
Declaring a national emergency allows a president to take severe actions such as seizing property and commodities, freezing bank accounts, taking control of the means of production, deploying troops to foreign countries, imposing martial law, shutting down news media outlets, limiting citizens’ right to travel, and imposing martial law.
Trump has not indicated he would make any of those moves, insisting that he only wants to reallocate federal spending to finance a portion of the 2,000-mile-long wall he has pledged to build since announcing his presidential candidacy in 2015.
Commanders in chief have often used their authority to declare a national emergency. U.S. News & World Report pointed out that Barack Obama did it in 2009 to relax regulations that restricted the ability of local governments and hospitals to set up health-care sites to deal with the swine flu epidemic. Two years later, George W. Bush signed an emergency order in response to the 9/11 terrorist attacks.
Trump has declared three national emergencies. The first one slapped penalties on foreigners who meddle in U.S. elections, though the president later advocated lifting sanctions that Obama imposed on Russia for interfering in the 2016 presidential race. Another emergency declaration that Trump signed enacted sanctions punishing human-rights violators in various countries, as well as the government of Nicaragua for alleged corruption and violence.
Not all presidents have succeeded in their attempts to use emergency powers. Harry Truman wanted the government to seize steel mills during the Korean War to thwart workers’ plans to stage a national strike. The Supreme Court decided that would exceed presidential authority.
CNN reported that since 1979, presidents have invoked 31 national emergencies which are still officially in effect. The declarations must be renewed every year.
Can Trump Use the Emergency to Build the Wall?
The president warns that some undocumented immigrants commit murder and other crimes, and take jobs away from Americans. He maintains that those issues meet the constitutional standard of a crisis and a threat to the country.
Whether the declaration of a national emergency allows Trump to legally finance the border wall is a matter of dispute. His opponents on Capitol Hill, as well as some legal experts, argue that a president does not have the authority to unilaterally change budget priorities. Democrats are citing a provision in the U.S. Constitution which stipulates that only Congress can appropriate money. All spending bills must originate in the House of Representatives.
White House chief of staff Mick Mulvaney, during an interview on CNN, countered that the president has a responsibility to “defend the nation.” A number of lawmakers, including some Democrats, concurred that Trump has the right to declare a national emergency to protect the country.
Rep. Adam Smith, the Democratic chairman of the House Armed Services Committee, answered “unfortunately yes” when asked on ABC’s “This Week” whether Trump can legally use emergency powers to fund the wall. He noted that recent presidents have made such declarations to pay for military facilities in Iraq and Afghanistan.
The congressman’s comments prompted Trump to tell his Twitter followers that presidents have used their emergency authority “a number of times.”
In an op-ed for The New York Times, Bruce Ackerman of the Yale University law school made the case that declaring an emergency to build the wall is illegal. Another professor – Bobby Chesney, an associated dean at the University of Texas School of Law – disagreed. He cited a pair of statutes that allow a president to move government funds from one budget area to another in an emergency.
One of the statutes states that a president may redirect the use of the U.S. Army civil works department’s personnel and other resources to “military construction” and “civil defense projects” which are “essential” to defending the country. The other statute permits “construction authority” during national emergencies.
What Funds Would Be Used to Build the Wall?
The $8 billion Trump wants for the border wall would come from appropriations Congress approved for construction of facilities for the military and housing for troops’ families. USA Today noted that Bush used his post-9/11 national emergency declaration in a similar way, to erect structures for the U.S. armed forces in the Middle East.
To build the wall, Trump is targeting the $1.375 billion that Congress earmarked for the project, plus $2.5 billion from drug-interdiction activities in the Defense Department and $600 million from the drug-forfeiture fund at the Treasury Department. In addition, the president would take $3.6 billion from the Pentagon’s military construction budget that lawmakers allocated for hospitals, barracks, airport facilities, schools for troops’ children and other building projects.
It would not be the first time Trump has had the armed forces aid in enforcing immigration laws. Last year, he ordered troops to assist the Border Patrol by placing concertina wire on sections of the Mexican boundary to deter migrants.
The soldiers were scheduled to end the operation on Jan. 31, but the Department of Homeland Security secured an extension of the deployment for the construction of fencing. About 2,200 members of the National Guard are also on the border, with missions set to continue until the end of September.
Can the Supreme Court Stop the President?
Sixteen states, as well as liberal groups like the American Civil Liberties Union and landowners whose property the government would seize for border wall construction, are taking legal action to block Trump’s national emergency declaration.
The president has acknowledged that at least one of the lawsuits will likely reach the Supreme Court. He suggested that his administration would appeal negative rulings by federal district and appellate courts.
The Supreme Court might have to decide the validity and scope of the National Emergencies Act. Steve Vladeck, who teaches law at the University of Texas, told CNN that the 1976 law has never been the subject of a legal challenge.
Trump has good reason to believe that the Supreme Court would affirm his emergency declaration. The president’s appointment of two conservatives to the nation’s highest legal bench resulted in the court featuring five right-wing justices who tend to support presidential power.
If the courts do not prevent implementation of the emergency order, Congress might pass a “joint resolution of disapproval” with majority votes in the House and Senate, as authorized by the 1976 act. Democratic Reps. Alexandria Ocasio-Cortez of New York and Joaquin Castro of Texas claim to have more than 60 co-sponsors of their joint resolution bill.
Trump would almost certainly refuse to sign the legislation, but Congress could override his veto with a two-thirds votes in both houses. Democrats have a large enough majority in the House to override, but Republicans hold 53 of the 100 Senate seats. That means 20 GOP senators would have to join the chamber’s 45 Democrats and two independents in rebuking the president. And that is highly unlikely for the foreseeable future.