Speaking in the White House Rose Garden Friday morning, President Donald Trump announced that he would declare a national emergency in order to construct a barrier on the southwestern border.
"We're talking about an invasion of our country, with drugs, with human traffickers, with all types of criminals and gangs," Trump said. "I'll sign the final papers as soon as I get into the Oval Office, and we'll have a national emergency."
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Trump's long-promised move follows his reluctant signing of a spending bill, passed by Congress and meant to avert a second government shutdown. The spending deal allocates $1.4 billion for constructing border barriers, far shy of the $5.7 billion the White House had sought.
The declaration of a national emergency will give Trump the power to divert $3.6 billion from other Department of Defense military projects to build a barrier. The White House said that it also expects to allocate $601 million from asset forfeiture funds held by the Treasury, and $2.5 billion from the Department of Defense for counterdrug activities. In addition to the money appropriated from Congress, that means Trump will have more than $8 billion to spend on a wall.
Trump's declaration of a national emergency has attracted criticism from both left and right. Speaker Nancy Pelosi (D., Calif.) has suggested that House Democrats might sue the president to block implementation, or could pass a joint resolution in an effort to override Trump. Many Republicans, like Sen. Lindsey Graham (R., S.C.), have been calling for an emergency declaration for weeks. But others said that they would back a congressional override.
"I don't believe that's the way we should be doing these sorts of things," Sen. Marco Rubio (R., Fla.) told the Washington Post. "I actually think that there's a real constitutional question about it … I think things should be delegated to Congress; that's the way the system was set up."
Rubio is right that the exercise of emergency powers raises important and complicated questions. What powers do Congress and the president have to declare emergencies? What constitutes an emergency? And how powerful should the president be? All are questions likely to divide lawmakers and pundits in the weeks to come.
What Is Emergency Power Anyway?
Special powers in the event of an emergency are as old as republican government itself. Law in the Roman Republic—to which the American system owes a substantial debt—provided for the appointment of a "dictator" in times of crisis, granting a single man power to act decisively in the face of a particular problem and for a limited time. The Romans knew that while checked-and-balanced republicanism normally protected liberty, its deliberativeness was not well suited to problems which required swift and resolute action.
All governments have regular tasks which make up the majority of their responsibilities—collecting taxes, keeping the peace, providing services, etc. Since the rise of constitutional liberalism, most governments have rules—constitutions and bodies of law—which lay out how these tasks are conducted, by whom, and under what circumstances. If such activities were all that government did, then these rules would be adequate to every situation.
However, governments are obliged to deal not just with ordinary tasks, but exceptional circumstances which are not regular enough to be accounted for by the law. Such circumstances can include unforeseen natural disasters, like floods or earthquakes, or cases of invasion or civil insurrection.
These events disrupt the normal state of affairs in unpredictable and dangerous ways, and therefore may require responses from government not foreseen by the law. Such an event is an emergency, and requires a grant "emergency power" to respond to it. Such powers are usually broad and ill-defined, usually granting a single, executive actor the ability to act outside the usual law in the name of the national interest.
Emergencies, an American Tradition
The U.S. Constitution, unlike many others, does not contain a provision for implementing a state of emergency. Instead, the evolved process has been for Congress to statutorily grant the president the ability to declare a state of emergency, with associated powers activating upon declaration. The earliest example of this arrangement, according to the Congressional Research Service, was George Washington's statutorily-permitted calling up of the militia in 1794, in response to the Whiskey Rebellion.
Sometimes, the president has acted with dubious or unilateral authority, based only on his Article II powers. In 1861, with Congress out of session and seven states in active rebellion, President Abraham Lincoln ordered a blockade of the Confederacy and enlarged the army under self-claimed emergency authority. Congress only later ratified his decision.
Although it has been used most frequently in wartime, presidents have exercised emergency power for other exceptional circumstances. Forty-eight hours after assuming office, Franklin Roosevelt used the authority of the Trading with the Enemy Act of 1917 to make an emergency declaration that closed banks nationwide. In March 1970, Richard Nixon declared a national emergency in response to a postal strike, so he could mobilize the National Guard to deliver mail; the following year, Nixon used an emergency declaration to control the balance of trade.
In 1973, wary of the post-Watergate presidency and increasingly concerned about the use and lengthy duration of national emergency proclamations—one had been in effect for 40 years—Congress organized a Special Committee on National Emergencies and Delegated Emergency Powers. The result was the National Emergencies Act of 1974 (NEA), which still governs emergency proclamations today.
Emergency Powers Today
The NEA specifies how the president can declare a national emergency (with a proclamation notifying Congress) and how long such an emergency lasts (one year, albeit renewable annually). It also gave Congress a legislative override, today in the form of a joint resolution that can be vetoed by the president.
Importantly, the NEA does not actually grant any emergency powers—other statutes do. The Brennan Center for Justice has identified 123 emergency powers specified by statute, any of which the president can in principle invoke in declaring a national emergency. The NEA obliges the president to specify which authorized powers, specifically, he intends to exercise. Trump is expected to claim power under the auspices of 10 U.S.C. § 2808, which permits the president to undertake not-otherwise-authorized military construction projects in the event of a declared national emergency.
Since the NEA's passage, presidents have issued 51 declarations of national emergency. Stretching as far back as Jimmy Carter's order to seize Iranian government assets in the United States, 30 remain in effect. Trump has in fact already declared three national emergencies, including one imposing sanctions for foreign interference in U.S. elections. President Barack Obama for his part issued 12, of which 10 are still in effect.
Why the Worry?
In spite of the apparent normalcy of issuing a national emergency, Trump's move clearly has public officials, including members of his own party, concerned. There are basically three reasons why: first, that the declaration may be an illegal use of military authority; second, that it may constitute an illegal end run around Congress; and third, that Trump's actions could allow another president to also use emergency powers to implement his or her policy preferences.
Libertarian lawyer and commentator Ilya Somin has argued vehemently for the first point. Somin has emphasized that section 2808 only concerns emergencies "that requires use of the armed forces," and that building a wall does not, in his opinion, meet that requirement.
Yale Law professor Bruce Ackerman went further in a recent New York Times op-ed, arguing that the military is not permitted to enforce domestic law—including prosecuting military national emergencies domestically—unless specifically authorized to do so by Congress. The White House did note, however, that Presidents Obama and George W. Bush both directed the military to assist with securing the border.
These objections to the particularity of 2808 dovetail with the second concern. Brennan Center fellow Elizabeth Goitein argued in The Atlantic that Congress has made clear its unwillingness to fund border security at the level Trump wants; in declaring a national emergency, Trump might therefore be stepping on Congress's constitutional prerogative as the nation's legislative authority.
"[E]mergency powers are not a license for the president to sidestep Congress," Goitein writes. "To the contrary: The only powers the president can access during a national emergency are those Congress has granted. However potent some of these powers might be, the source of the president's authority in all cases remains a legislative delegation—one that is granted in advance because true emergencies require immediate action."
What Comes Next?
These questions—whether Trump can invoke 2808 to build a wall, and whether doing so contravenes Congress's rights—will almost certainly be settled in court. But there's a deeper question: Does declaring a national emergency in order to control the border dangerously expand future presidents' prerogatives?
For example, the resolution recently released by Rep. Alexandria Ocasio-Cortez (D., N.Y.) calling for a "Green New Deal" explicitly labels climate change a crisis and a "direct threat to the national security of the United States." A future president could use such a conclusion to argue that climate change constitutes a national emergency, and thereby access the wide variety of emergency powers available in federal law to combat it.
"100 people die from guns every day. That's a national emergency," tweeted Sen. Chris Murphy (D., Conn.). "If Trump gets away w this border emergency declaration, then a Dem President can declare a gun violence emergency and institute universal background checks and an assault weapons ban by executive action."
Just such a possibility is what has Rubio, normally a staunch Trump ally, concerned.
"We have a crisis at our southern border, but no crisis justifies violating the Constitution," Rubio told Axios. "Today's national emergency is border security. But a future president may use this exact same tactic to impose the Green New Deal."
Such concerns are not merely with Trump's particular action, but with the whole edifice of emergency powers as such. The statutes identified by the Brennan Center offer sweeping, essentially unchecked powers to a president simply by dint of a declaration. Trump's declaration is likely to prompt a deeper debate, about whether this situation is sustainable, and if the modern presidency has grown too powerful to tolerate.