State attorneys general: Donald Trump's national emergency declaration is constitutional
President Donald Trump’s emergency declaration is a proper use of executive power to protect our country’s borders and keep Americans safe. Unfortunately, the crisis at the southern border is one that only the federal government may truly solve. With no solutions coming from Congress, the president is faithfully executing the duties of his office by invoking a law Congress already passed: the National Emergencies Act (NEA).
In declaring a state of emergency pursuant to the NEA, President Trump is using pre-existing statutory authority to address a legitimate crisis created by lawless conduct at and beyond our southern border. This emergency declaration is not a case of the president relieving himself of restrictions under the law. To the contrary, our president is protecting our country’s borders through means contemplated by Congress and used many times by past presidents for matters less directly threatening than those present on the southern border.
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The NEA gives the president broad authority. In fact, Congress did not define “national emergency” in the NEA, leaving it entirely at the president’s discretion to determine what constitutes such an emergency. But any president who makes such a declaration must tell Congress the statutory authority upon which he is relying, as President Trump has done here. The president’s action is neither new nor extraordinary.
The NEA has been used by every president since its adoption in 1976 and has been invoked more than 50 times. Past administrations issued emergency declarations on a wide variety of issues with less direct impact on the safety and security of Americans — including the sale of blood diamonds (Clinton) and misconduct by multiple foreign governments like Burundi (Obama), South Sudan (Clinton, Obama), Venezuela (Obama) and North Korea (Bush).
Many of these declarations have renewed annually for years or decades. The emergency declaration in response to the Iranian hostage crisis, for example, has been renewed each year since it was declared in 1979. (The hostages were released in 1981.)
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Everyone knows there is a massive problem with illegal immigration and international organized crime operating on our borders. Congress has been talking about the crisis at the southern border for decades. Up until recently, border security was a bipartisan issue. In 2005, New Mexico Gov. Bill Richardson — a Democrat who served in President Bill Clinton’s Cabinet — declared a state of emergency at his state’s southern border. In announcing the state of emergency, Richardson criticized the “total inaction and lack of resources from the federal government and Congress” in helping protect his state’s residents along the border. In describing the crisis, the 2005 declaration stated New Mexico has been “devastated by the ravages and terror of human smuggling, drug smuggling, kidnapping, murder, destruction of property and the death of livestock.”
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As state attorneys general, we are the chief legal officers of our states, with the duty to defend our sovereigns from federal overreach. We have been quick to challenge executive actions that exceed the president’s lawful authority.
President Trump’s emergency declaration to address the crisis at the southern border is much different than the kinds of executive action we challenged in the past. Unlike President Barack Obama, who unlawfully used executive power to create new laws or rewrite laws Congress enacted, President Trump is lawfully using executive power to address a crisis worsened by congressional inaction. That is a stark difference but not the only one: This use of executive action is part of the core duties of the president — to protect the borders of our country. In doing so, he properly invoked power that Congress expressly granted him to deal with a national crisis.
Astonishingly, multiple meritless complaints have been filed against the president’s emergency declaration. This is the first time ever in the history of the NEA that the president has faced a court challenge. In four decades and more than 50 emergency declarations, only now has anyone challenged the president’s determination that an emergency exists.
The facts support Trump — Congress should, too
The funding sources proposed by the president are also proper. Out of the $8 billion needed to address the crisis on the southern border, $4.5 billion does not depend on any declaration of a national emergency: $1.375 billion has already been appropriated by Congress, $600 million comes from the Treasury Department’s asset forfeiture fund and $2.5 billion stems from the Pentagon’s drug interdiction program fund, which specifically contemplates building a barrier that prevents drugs from crossing a border.
It is only the $3.6 billion from the Pentagon’s military construction project budget that requires a national emergency declaration. Even then, the only funds that can be used are funds that have been appropriated but not otherwise obligated. Therefore, any argument that any particular state would otherwise have gotten some of these funds for military construction projects in their states is entirely speculative.
The facts matter — these facts show the president has acted lawfully and within the scope of discretion Congress and the people vested in him. Congress should support President Trump.
Ken Paxton is attorney general of Texas and chairman of the Republican Attorneys General Association. Curtis Hill is attorney general of Indiana and vice chairman of RAGA. Jeff Landry is attorney general of Louisiana and president of the National Association of Attorneys General. Follow them on Twitter: @KenPaxtonTX, @CurtisHill_IN and @AGJeffLandry
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This article originally appeared on USA TODAY: State attorneys general: Donald Trump's national emergency declaration is constitutional
