Capitolworks: Just the Facts...How an Emergency Declaration to Build a Border Wall Continues the Ong

Some of you may be wondering why President Trump’s recent declaration of a national emergency to secure funding for the border wall project is getting so much attention. As you may recall, it was the inability to secure the funds for this project through the legislative appropriations process that led to the government shut down earlier this year. But a declaration of an emergency is within the power of the Executive branch so why now are we once again debating the wall? This time around, it’s the process. Though presidents have declared 58 emergencies over time, this is the first aimed at acquiring money for an item Congress has explicitly refused to finance, according to Elizabeth Goitein, co-director for national security at New York University Law School’s Brennan Center for Justice. Some opponents go so far as to assert that Mr. Trump’s actions are unconstitutional based on our government’s system of checks and balances. To sort out whether or not there is indeed a constitutional claim or, this is just another illustration of party politics, let’s take a look at the law that created this executive power.

The National Emergencies Act of 1976 (Act) created the power to allow a president to declare a state of emergency. This Act represented an understanding by Congress that there are times in which the Executive branch (the President and the agencies) can move more quickly than Congress (which has a lengthier process) during a national emergency. Somewhat ironically, it is now Congress that is protesting President Trump’s use of this power.

But why? Some Lawmakers assert there is no basis to declare an emergency based on data collected from the border states. There are undoubtedly challenges faced at securing our border but whether or not those rise to a state of emergency is debatable. The National Emergencies Act does not offer much clarity on what constitutes an emergency as it states that an emergency is “a general declaration of emergency made by the President.” An incredibly broad definition that allows a President to declare a national emergency for just about anything. This lack of legislative clarity leaves a declaration of emergency up to the President and if challenged, the courts. But how does the declaration of an emergency create an opportunity for funding and why wasn’t this process initiated earlier?

President Trump’s team is using a clause within the Act that allows money to be redirected from existing military projects to activities related to the emergency. However, the Secretary of Defense is charged with determining which existing projects are put on hold to allow funds to go towards the emergency. Is any of this outside of the law? Have there been any infringements to our constitution? Again, it depends on how the term “emergency is defined” and if it warrants redirected funding. Perhaps things that can be disputed but resolved in the President’s favor.

Another clause within the Act states that to use redirected funding, there must also be a need for military personnel to be present. Essentially, the emergency must cause a situation in which our members of the military should also be redirected to deal with whatever aspects of security warrant their presence. This particular clause may pose greater difficulty for Mr. Trump particularly if the data, as mentioned above, does not illustrate an actual emergency or at least one that would require the placement of military troops. Again, the decision of what military troops should be relocated would be at the discretion of the Secretary of Defense.

So what’s happening now with all of these questions and debates? There have already been several lawsuits filed by both State Attorney Generals as well as private citizens. Congress has also taken an unprecedented move to try to pass a resolution that would annul the emergency declaration. On Tuesday night, the House passed such a resolution, and on the Senate side, three Republicans have stated they would back the Democrats’ measures to block the President’s declaration. However, ultimately, this congressionally passed resolution would require the President’s signature, which won’t happen, and that would require Congress to pass the resolution with a higher veto-proof majority. So for now, there are no clear answers as to whether or not the declaration will stand. It appears as though the answers will come from the courts, as they often do, but that will be a lengthy and consuming process. It’s safe to say that we will continue to hear and read about the infamous wall for months to come.

*Contributing Author: Hunter Elam