Editor’s note: This article was originally published on Tuesday, January 8th. On Friday, January 25th, President Donald Trump said he would agree to temporarily reopen the government but, if Congress continued to reject his plans for a border wall, he may declare a “national emergency.”
President Donald Trump is caught between a wall and a hard place. With a $5.7 billion price tag, his proposed southern border wall has divided Congress and sent the nation into its 18th day of a government shutdown—stranding some 800,000 federal employees without pay. On Tuesday night Trump is scheduled to address the nation, interrupting prime-time on broadcast networks for the first time in his presidency.
While a senior White House official told The Washington Post that the president plans to use the airtime to garner support for the wall, it remains unclear whether he might make a more drastic proclamation instead—declaring a “national emergency” and freeing himself to implement more than 100 powers. By invoking such an emergency Trump could potentially begin building his wall and, in a rhetorical dodge, then announce his demands had been met and that he would agree to end the shutdown. But he may also enrage Democrats and provoke a legal battle. Here is what a national emergency really means.
What qualifies as a “national emergency”?
In short, it depends. According to a report put together by the Brennan Center for Justice, both the president and Congress can declare a national emergency whenever they see fit. Despite the severe-sounding label, no broadly agreed-upon “emergency” is actually required. That means that while the underlying data doesn’t support parts of the Trump administration’s argument about the dangers at the souther border—for example, the number of illegal immigrants has decreased over the last two decades and, according to the State Department’s Bureau of Counterterrorism, there is “no credible information that any member of a terrorist group has traveled through Mexico to gain access to the United States”—the president nonetheless can rule it an emergency, The New York Times explains.
Under the National Emergencies Act, passed in 1976, Congress has the power to end a state of emergency declared by a president. But it has not done so in 40 years, according to the Brennan Center’s report. It seems especially unlikely that Congress would terminate the potential border-related national emergency, given its current makeup, as doing so would require a joint resolution and a signature from the president.
What can a president do with emergency powers?
Build a wall—maybe. Generally, emergency powers can help a president act in dire situations when executive branch’s standard capabilities are too limited. The thinking is that the president is ultimately tasked with safeguarding a nation’s safety and prosperity and, in a crisis, should be empowered to move swiftly as needed.
The Brennan Center identified 136 additional statutory powers that a president may use in the case of a national emergency, two of which may apply to the border wall. The first permits the president to use funding already allocated to military construction to begin “military construction projects not otherwise authorized by law.” The second statute allows the president to take away troops and other resources from Department of Army civil works projects and apply them to “authorized civil works, military construction and civil defense projects that are essential to the national defense.”
Is that legal?
While both of these statutes provide some legal cover if the president declares a state of emergency to fund the border wall, they each raise important questions. For example, does the wall qualify as “military construction”—a necessary component to the first statute? Or, as the second requires, has Congress already “authorized” a wall? Should the wall’s construction via an emergency be challenged in court, the Supreme Court would likely have to weigh in.
Do presidents regularly declare national emergencies?
Yes. Since the National Emergencies Act became law, presidents have declared at least 58 states of emergency, excluding weather-related events, USA Today reported. In 2009, President Barack Obama declared a national emergency amid the outbreak of H1N1, better known as swine flu and allowed the waiving of some rules such as privacy laws.
Wait until Trump’s speech at 9 p.m. ET, with a Democratic rebuttal to follow and the networks vowing to provide extensive fact-checking, given the president’s history of untruths and distortions.