Can Trump declare a national emergency?
The 360 is a feature designed to show you diverse perspectives on the day’s top stories.
What’s happening
President Trump has again threatened to declare a national emergency to bypass Congress if Democrats will not agree to fund a border wall. As he left Washington, D.C., Thursday to visit a Border Patrol station in Texas, the president said: “I have an absolute right to declare a national emergency … If this doesn’t work out, probably I will do it. I would almost say definitely.”
In the days since Trump first suggested the radical measure – which if invoked could set a new precedent for presidents who fail to win approval for policy funding – fierce debate has erupted over whether he has the authority to do so and whether the border dispute is an “emergency.”
Trump visited Texas one day after a fiery sparring session with Democratic leaders Nancy Pelosi and Chuck Schumer that ended at an impasse with each camp resolutely backed into its ideological corner.
The partial government shutdown officially became the longest in U.S. history on Saturday.
Meanwhile, approximately 380,000 government employees are on unpaid leave and an additional 420,000 considered essential are working without pay, including Border Patrol agents.
Perspectives
The Constitution doesn’t allow for Trump to declare an emergency. “The U.S. Constitution doesn’t contain any national emergency provision that would allow the president to spend money for purposes not allocated by Congress. And it’s clearer than clear that Congress not only hasn’t authorized money for a wall along the border with Mexico but also doesn’t intend to do so,” Noah Feldman writes in
David French expressed a similar argument in the
National Review, stating that if the president declared an emergency in order to seize land to build a wall it would be a “a lawless abuse of power.” He wrote, “The president does not have the constitutional or statutory authority to unilaterally declare an emergency under these facts, seize private land, and spend money to build a wall.”
A state of emergency for the wall would be illegal. Trump didn’t elaborate on what he had in mind, but it’s plausible that he would redirect funds meant for the military and disaster relief toward the controversial project. Bruce Ackerman, a professor at Yale Law School, wrote in the
New York Times that declaring a national emergency to have military personnel build the wall would be illegal and that any members of the armed forces who obeys would be violating federal law.
Or at least an abuse of power. The
New York Times reported that “of the 58 times presidents have declared emergencies since Congress reformed emergency-powers laws in 1976, none involved funding a policy goal after failing to win congressional approval.”
Trump’s declaration could be solid legal ground if he goes about it the right way. Harvard Law School professor Mark Tushnet told
NBC News said Trump may be on sound legal footing if he uses “un-obligated” money from the Defense Department, which “has funds in its account that are not specifically designated for anything. Congress gives them money and says, ‘We don’t know what’s going to happen over the next year — here’s 100 billion,’” guessing what the amount might be, Tushnet explained, using an example figure.
A declaration would be challenged in court. Reuters White House correspondent Jeff Mason said during a
Fox News interview that a national emergency would “almost certainly” be challenged in court. “The people who are very passionate about having this wall, including the president and his staff and people around him, are matched by people who are equally passionate about not having it,” he said.
The administration may be working under the assumption that any legislation it tries to pass will be challenged. “It looks like the Trump administration is getting overly fatalistic, assuming that everything they try will get held up in court,” Dara Lind writes in
Vox. “That’s not necessarily the case, and it’s certainly not an incentive to make good policy.”
This is not the purpose of national emergencies. Evan Hollander, a spokesman for the House Appropriations Committee, said in a statement that the president’s authority in this area “is intended for wars and genuine national emergencies.” He said, “Asserting this authority to build a wasteful wall is legally dubious and would invite a legal challenge from Congress.”
Trump “explicitly said the national emergency declaration is his backup plan,” Aaron Blake writes in the
Washington Post. He’s “acknowledging that such a declaration is basically a strategic option. Which doesn’t exactly bolster the idea that there is a true emergency on the southern border.”
What happens next?
Trump has mentioned the possibility of declaring a national emergency numerous times, but he has not yet made anything official.
The Department of Defense is preparing for the possibility of a national emergency declaration and “is reviewing available authorities and funding mechanisms to identify options to enable border barrier construction,” according to a Pentagon spokesperson.
The House passed two more bills to fund some federal agencies on Thursday, but Senate Majority Leader Mitch McConnell has said he will not bring the bills to a vote. Members of Congress left Capitol Hill on Friday and don’t plan to return until Monday. The partial government shutdown is expected to continue at least through early next week.
