President Donald Trump is eager to invoke a national emergency to bypass an unwilling Congress and build a border wall, according to two people familiar with his thinking, a dramatic move that would test the limits of presidential power.
Trump raised the sense of urgency with an announcement he will address the nation in prime time Tuesday on the “national security crisis” at the border.
Whether he exercises emergency powers depends on whether his lawyers conclude it’s a legally defensible move. And that may hinge on the interpretation of an obscure legal provision allowing the Defense Department to shift military construction funds during a crisis.
Some White House insiders believe Trump may act even if the move is sure to face a legal challenge - raising the stakes in a partial federal government shutdown that is stretching into its 18th day. Vice President Mike Pence told reporters Monday that White House lawyers are “looking at” the idea.
Trump plans to speak at 21:00 Washington time from the Oval Office, but it’s unclear whether he will declare a national emergency. Pence told NBC News on Tuesday morning that Trump “will explain the need not just to build the wall, which he’s determined to do, but also to provide our border patrol with additional resources.” He will also call on Democrats to “come to the table and start negotiating,” Pence said.
The president has asserted that he has the authority to build a wall without congressional approval if he declares a national emergency, but the White House hasn’t provided an explanation of the legal justification. Democrats have rejected the idea as an illegal overreach of presidential authority but Republican lawmakers have been relatively quiet.
Under the law governing the Pentagon, the president can declare a national emergency, which would allow the defense secretary to redirect money from military construction funds for projects “necessary” to support the deployment of US armed forces. That allows the secretary to skip congressional approval, which is normally needed to spend federal money.
The president has broad authority to declare a national emergency under a 1976 law and dozens of emergencies have since been declared, including during the Iran hostage crisis and the aftermath of the September 11 terror attacks.
“He has the authority to declare an emergency as long as he does so following the protocols laid out in that statute,” said Harold Krent, a professor who studies presidential power at the Chicago-Kent College of law, in a Bloomberg Radio interview. “There are very few constraints in the legislation that define what is a permissible emergency.”
But the law, passed as part of a sweeping set of legislation designed to restrain presidential powers after the Watergate scandal, also demands that the president invoke specific statutory authority for emergency actions.
Popular Projects Delayed
The Defense Department has emergency power to tap into - but not to exceed – funds already appropriated for military construction, as long as those funds aren’t already officially obligated. Trump has sent National Guard units and active-duty military to the border to support immigration enforcement.
Still, diverting the money carries political risks.
The president’s request for $5.6 billion in wall funding represents more than half of the $10.3 billion appropriated for military construction this year and would mean sidelining politically popular projects. That could particularly hit military families, with the government slated to spend $1.6 billion of that budget on family housing, $352 million for medical facilities, and $267 million on educational facilities.
Another Money Pot
The law also allows the Defense secretary to terminate or defer the construction of Army civil works projects during a national emergency, and apply those funds to “authorised civil works, military construction, and civil defense projects that are essential to the national defense.”
That again risks a political backlash, since Trump’s request for wall funding amounts to almost all of the less than $7 billion Congress appropriated for the purpose this fiscal year. The funding is largely committed to operating and maintaining important commercial routes as well as flood risk management.
Jeh Johnson, who was the Defense Department’s general counsel under President Barack Obama and later secretary of Homeland Security, said he doubted any of the emergency provisions covering the Defense budget could be used to pay for a border wall.
The provisions “are intended for battlefield situations, war situations overseas to build things like detention facilities,” Johnson said. “When you look at the historical precedent for use of that authority you find that’s what it’s intended for.”
Another option for Trump would be declaring an “immigration emergency” under the Immigration and Nationality Act, which provides the president new powers when there is an influx of aliens at a rate “that effective administration of the immigration laws of the United States is beyond the existing capabilities”. If the Justice Department determines such a crisis exists, is likely to grow in magnitude, and that the crisis is increasing criminal activity, the president can inform Congress an emergency exists and tap into additional funds.
But the immigration law only provides $20 million annually for emergency funding, and money appropriated to address immigration enforcement has already been stretched thin.
Court Challenges Likely
Congressional Democrats have already said they would mount a court challenge to any use of emergency authority.
“The president’s authority in this area is intended for wars and genuine national emergencies,” Evan Hollander, spokesman for the House Appropriations Committee, said in a statement. “Asserting this authority to build a wasteful wall is legally dubious and would invite a legal challenge from Congress.”
In addition to House Democrats, individuals who might have benefited from military projects put on hold to help fund the border wall could have standing to challenge Trump’s efforts, Krent said.
Landowners, Indian tribes and states whose property is seized through eminent domain to complete construction of a border wall also could challenge the emergency authority in court, according to Ilya Somin, a law professor at George Mason University and an expert in constitutional law and property law.
Courts have limited the president’s emergency powers before, including in a 1952 Supreme Court decision in which the high court said President Harry Truman could not use an emergency declaration to seize steel factories to ensure production during the Korean War.
But Krent said laws governing emergency authority have since changed, and that it would be difficult to predict how the case would be viewed by the current Supreme Court in which Republican-appointed justices hold the majority.