Is a Border Wall Really Grounds for a National Emergency?

On Friday, Jan. 25, 2019, President Donald Trump finally put an end to the longest government shutdown in U.S. history that resulted over his demand that Congress provide $5.7 billion to build a 234-mile (377-kilometer) portion of his promised wall along the U.S.-Mexico border. But there was a caveat: The bill passed was a three-week stopgap spending bill and if Congress and Trump can't come to an agreement by Feb. 15, he is threatening to build his wall by invoking the National Emergencies Act, a 1976 law that allows a president to take dozens of different actions without Congressional approval in the event of a crisis.

"If we don't get a fair deal from Congress, the government will either shut down on Feb. 15, or I will use the powers afforded to me under the laws and Constitution of the United States to address this emergency," he said in a speech in the Rose Garden on Jan. 25, 2019.

And according to reporting by CNN, the draft proclamation for Trump to declare a national emergency has been underway for several weeks. It includes $7 billion for a border wall, and would also direct the U.S. Department of Defense to be in charge of its construction, circumventing Congressional authority altogether.

At this point, you may be wondering: What exactly, is a national emergency, anyway? And can a president really declare one to get around Congress?

Unfortunately, neither of these questions has a clear answer. The law that allows presidents to declare national emergencies doesn't really define what constitutes such a dire situation, and up to this point, the limits that the law imposes upon presidential authority haven't been tested by a situation of this sort.

As this 2007 Congressional Research Service (CRS) report details, the idea of giving the president emergency powers dates back to the nation's beginnings. In 1792, after distillers in Pennsylvania, Virginia and the Carolinas resisted paying a federal tax on whiskey, Congress passed a law giving a president the authority to proclaim an emergency and call up a militia in response to an insurrection or invasion. President George Washington waited two years to invoke those emergency powers and put down the uprising by force.

Some History

Over the years, though, other presidents didn't always wait for Congress to give them authority to invoke emergency powers. As detailed in this 2008 article in the Journal of the Abraham Lincoln Association by historian James E. Dueholm, President Abraham Lincoln took it upon himself in 1861 to suspend habeas corpus and allow the Union Army to arrest and hold Confederate sympathizers in Maryland without a court hearing. And according to the CRS report, shortly after taking office in March 1933, President Franklin D. Roosevelt stopped panicked bank depositors from withdrawing their money by proclaiming a national emergency.

FDR's successor, President Harry S. Truman, tried to use a state of emergency proclaimed during the Korean War in 1952 to seize control of the steel industry and force an end to a strike, but the U.S. Supreme Court stopped him, ruling that he'd overstepped his authority. In 1970, when U.S. Postal workers went on strike, President Richard Nixon declared a national emergency and called up military reservists to deliver the mail, and the following year used a national emergency to impose trade restrictions.

After the Watergate scandal, when there were fears that Nixon might use emergency authority to keep from being removed from office, Congress decided to set some rules.

"The 1976 Act was a way of trying to rein in presidents and prevent them from abusing power by declaring emergencies without any congressional input or oversight," political historian Matthew Dallek, an associate professor at George Washington University's Graduate School of Political Management, explains in an email. It was "was an attempt to establish some parameters on the presidential use of the emergency power."

The statute requires that once declaring an emergency, a president has to reauthorize it annually if he wants to extend it, and he also has to specify which of the more than 100 potential emergency powers that he is activating during the emergency, according to Dallek. Additionally, the president's emergency power isn't absolute. As this Lawfare blog details, a 1985 amendment to the law enables Congress to end the emergency by passing a joint resolution — though if the president vetoes it, a two-thirds majority in both chambers is required to override his wishes.

But that check-and-balance hasn't ever been tested, because Congress has yet to formally overturn a declaration of national emergency, Dallek says.

No Definition

And oddly, the statute has one omission that, given the present controversy over the border wall, might seem like a glaring flaw: The statute doesn't actually define what constitutes a national emergency.

"The implication was then, and has been ever since, that national emergencies are plain to any reasonable observer," Dallek explains. Wars, terrorist attacks, natural disasters, and epidemics of dangerous diseases such as swine flu would fit the bill, he says.

U.S. presidents declared national emergencies 58 times between 1979 and 2018, according to this list compiled the Brennan Center for Justice, a New York-based think tank and advocacy organization.

But invoking of emergency powers to fund a border wall — a massive long-term construction project that would take a decade to complete, according to this Washington Post article — would be venturing into unexplored territory.

"What Trump is contemplating is a major departure — a break from precedent and quite possibly unconstitutional," Dallek says. "His emergency, if he declares it, would be a clear end-run to get around Congress — an effort to circumvent the will of the people in order to find appropriations to build his wall. Congress has the sole power to appropriate funds and no president as far as I know has ever used an emergency to get around Congress when they can't get their policy enacted."

What constitutes a national emergency will be the subject of legal argument and congressional debate should Trump go so far as to declare a national emergency on the southern border in order to build his wall," Dallek predicts.

Trump has tweeted that if he can't get Congress to approve wall funding, "the Military will build the remaining section of the Wall," which might mean diverting billions already allocated for military construction projects. In a New York Times opinion piece, dated Jan. 5, 2019, Yale University law professor Bruce Ackerman argued that such an action would be illegal, and it would likely be challenged in the courts.

A Washington Post-ABC News poll published Jan. 13, 2019, found that 66 percent of Americans oppose the idea of Trump declaring an national emergency to build the wall.