President Donald Trump might end one conflict with Congress over funding for his long-sought Mexican border wall by invoking national emergency powers, but he’s almost certain to ignite another, with repercussions Republicans may regret in the future.
By declaring an emergency, Trump would be seeking to unlock the money needed to start new sections of the wall without Congressional approval, but the move would be fraught with risk. Members of Congress, landowners and environmentalists may sue, and legal experts said judges may eventually derail Trump’s gambit altogether.
“There has to be some basis for declaring an emergency when both houses of Congress have concluded" there isn’t one, said Walter Dellinger, who served as acting Solicitor General under President Bill Clinton. “It’s not enough to put a stump speech on paper and file it in court.”
There have been 58 declarations of a national emergency since Congress passed The National Emergencies Act in 1976, bolstering, perhaps, Trump’s claim on Thursday that he has an “absolute right” to declare one. But while he may have broad authority to make such a pronouncement, it’s far from clear that he can use the declaration to fund a wall.
Trump rode hard his campaign promise to build a "big, beautiful wall" to halt illegal immigration and stanch the flow of narcotics from Mexico, Central and South America. Now that promise has metastasized into a full blown showdown with Congress, with the Democratic-controlled House of Representatives steadfast in its refusal to commit $5.6 billion for a barrier.
Longest ever government shutdown
This week, as the country entered the longest-ever government shutdown, administration officials were considering tapping funds earmarked for the military, disaster relief for Puerto Rico, or some other government program, and Trump repeatedly suggested he might invoke a national emergency.
But that will open him up to any number of legal challenges.
What qualifies as a national emergency has never been spelled out in the law, leaving the field wide open for presidents to make their own determinations. Yet legal experts said that power isn’t absolute, and it’s likely the declaration itself will be attacked in court.
"Something that supposedly becomes a ‘national emergency’ only when Congress fails to give the president what he demands, but hasn’t been an emergency until that point, is obviously no emergency at all,” said Harvard law professor Laurence Tribe, a frequent Trump critic. "The claim that there’s an immigration crisis at the border is totally fake - apart from the humanitarian crisis created by President Trump himself."
The Trump administration’s use of dubious statistics, including the misleading claim that nearly 4000 known or suspected terrorists were caught trying to enter the US illegally - the vast majority were prevented from traveling to the US by air or legal ports of entry - might also undermine the president’s position that there is an emergency, experts said.
Yet even if a declaration of emergency survives a legal challenge, Trump still may lack the authority to use government funds to construct a southern barrier. The US Constitution gives Congress, and not the president, the power to appropriate money, and Trump must find a legal way to tap the money he wants for a wall.
There are 136 "statutory powers" potentially available to Trump upon a declaration of a national emergency, according to the Brennan Center for Justice at New York University School of Law. Two of those “offer some legal cover” for him to build the wall, according to the center, which also tallied the 58 emergency declarations.
One permits the Defense Department to shift certain funds appropriated for construction projects in support of the armed forces. The other allows the Army to take money from existing construction projects and apply them to other projects needed for national defense.
Whether any of these would allow Trump to lay claim to government funds to begin wall building may be up to the courts to decide. In 1952, in a landmark decision limiting the president’s power, the Supreme Court blocked President Harry Truman for seizing steel plants during the Korean War, with a key opinion saying his authority during an emergency is restricted when he acts contrary to the will of Congress.
"Now the easy solution is for me to call a national emergency,” Trump said Friday. “I could do that very quickly. I have the absolute right to do it. But I’m not going to do it so fast because this is something Congress should do."
Josh Blackman, a professor at the South Texas College of Law in Houston, said Trump may ultimately prevail if he resorts to his emergency powers, especially if he avoids seizing property from border landowners and shifts money to build where Congress has already authorized fencing but hasn’t funded it.
But he criticised the move as setting "a terrible precedent,” providing justification for a successor, possibly a Democrat, to also circumvent Congress and declare emergencies over global warming or an economic downturn.
Trump on Friday recognised his administration would be sued and likely lose if the case is brought in federal court in California and appealed to the liberal-leaning Ninth Circuit Court of Appeals. But he predicted he’d eventually prevail.
"It’ll be appealed to the Ninth Circuit and we’ll probably lose there,” Trump said. “But fortunately we have the Supreme Court that’s treated us very fairly."
The current high court - and particularly Chief Justice John Roberts - has generally been wary of Trump-related controversies, deferring involvement when possible and often resolving issues with incremental steps.
Roberts has a mixed record on presidential power and Trump’s assertions of sweeping authority. In June, he wrote the court’s decision upholding the president’s travel ban, saying the president has "broad discretion" under the nation’s immigration laws to block foreigners from entering the country.
But last month Roberts joined the court’s liberals in refusing to let Trump start automatically rejecting asylum bids from people who cross the Mexican border illegally.
Who Can Sue?
It’s not clear how quickly a dispute over the wall could reach the justices - or even who could sue. Democrats may challenge the end-run around the legislative process. Some people affected by construction - particularly those whose border-area property is seized by the government - will also likely challenge a declaration. And environmental groups may seek to force compliance with laws protecting the environment and endangered species.
NYU Law School professor David Golove said litigation could stretch well past the 2020 election, making the wall construction plan a moot point if Trump fails to win a second term and his successor scuttles the idea.
Still, Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law, said the Supreme Court would want to have the last word.
"To me it’s a very dangerous precedent,” Chemerinsky said. “We know from world history that the way dictators have often come to power is by claiming powers in an emergency.”