This article originally appeared on VICE US.
On Tuesday night, Donald Trump delivered a much-hyped address about immigration, the supposed "crisis" on the southern border, and his demand for a wall that has led to a weeks-long partial government shutdown. Sitting in the Oval Office and speaking in relatively muted tones, the president rattled off misleading numbers about drug use and crimes committed by undocumented people, a common theme in his rhetoric that Vox immigration reporter Dara Lind has dubbed "immigrants are coming across the border to kill you." He argued a border wall would "pay for itself" and reiterated his demand that Congress allocate $5.7 billion for the project, though he appeared to offer no concessions to Democrats in exchange.
The only newsworthy thing about the speech was what wasn't in it: After widespread speculation, Trump has apparently decided not to try funding the wall by declaring a national emergency—at least not yet. Still, that possibility hovers above the debate that's paralyzed Washington, DC.
Though a "national emergency" sounds like an alarming event, they are actually relatively common. According to a list compiled by the Brennan Center, presidents have declared 58 emergencies since 1978, and at least a couple dozen are still in effect—the public just doesn't notice most of them. What makes this potential one stand out is that there's scant evidence there's any sort of emergency on the border, especially not one a wall would solve.
An emergency declaration would probably lead, as so many of Trump's actions in office have, to lawsuits and arguments in court. But there are a number of legal paths the administration could use to attempt to justify the building a wall, or at least a fence, on emergency grounds, according to an article by Brookings fellow and Lawfare Senior Editor and Counsel Margaret L. Taylor. On Tuesday, in advance of the president's speech, VICE called her up to go over Trump's options and the opposition's likely response to them.
VICE: So what mechanisms could Trump use to declare an emergency and start building a wall?
Margaret L. Taylor: In particular, there is a statutory authority in 10 U.S.C. 2803 that would authorize the Secretary of Defense to engage in a military construction project if the president has declared a national emergency. Under this authority, the Secretary of Defense could use funds that the Pentagon has for military construction already to build a wall on the southern border. Now, of course, there could be legal challenges to this type of action given that it's not obvious that there is a national emergency that would support the declaration by the president. But the statutory authority as written is there.
So you could challenge that kind of declaration in court by arguing that there's not an emergency? Does the president not get to decide what is an emergency and what isn't?
There is an existing practice in this realm. For example, the International Emergency Economic Powers Act, which is the basis for economic sanctions—which is something we hear a lot about, the administration sanctioning various individuals and companies—that authority it is premised on a declaration of a national emergency. Members of Congress and the courts generally have been quite deferential to presidents who have made national emergency declarations in that context. This context, building a wall on the southern border, is obviously more controversial. I can see a number of different types of litigants potentially bringing suit for various reasons, and if they have standing then a court would be asked, potentially, to look at the question of whether the president's declaration of a national emergency was actually valid.
But then, as I said before, at least in other contexts where the national emergency language is used, the courts have been fairly deferential. I think what's different perhaps in this scenario is that the circumstances around the declaration of a national emergency seem to be almost manufactured in some sense. In addition, Congress has specifically stated that they do not want to fund the wall. There is this direct conflict going on between the executive branch and the legislative branch.
This is a hypothetical because Democrats don't control the Senate, but could Congress to pass a bill overriding the state of emergency?
Under a particular statute called the National Emergencies Act, there is the possibility that Congress could enact a joint resolution which would essentially end the state of the national emergency. A joint resolution is essentially just like a regular bill: it would have to be signed by the president, but Congress could override a veto. However, that particular authority in the National Emergencies Act hasn't been used very much, and practically speaking, it's hard to see how that type of an endeavor would be successful in the current political environment. I did see some reporting that many Republicans on the Hill are actually quietly supportive of this idea of the president declaring a national emergency because it gets them out of the pickle they're in with respect to the government shutdown. So I don't necessarily see Republicans exerting what you would think of as a congressional prerogative in this circumstance.
There's been a long trend toward the presidency getting more powerful, and also a trend of norms being violated. Would a declaration of emergency be a continuation of both of those trends?
The executive branch has been garnering its power for many, many years and has been quite aggressive on a number of different fronts. One that comes to mind, for example, is the use of military force. Congress is given the power to declare war and yet there have been many instances where the executive branch is stretching congressional authorizations on the use of military force to encompass things that arguably were not intended under a particular statute. So I do think this is part of a longer-term trend.
I have the sense President Trump doesn't mind accelerating that trend, and that, I think, is troubling and is what people are reacting to in this moment. It is on Congress to remember its constitutional role. If Congress doesn't do that, I do fear over the long term it will lose those prerogatives. I don't think that Congress can depend on, for example, the courts to resuscitate its prerogative.
Should people be worried about a declaration of a national emergency being part of a larger democratic backsliding in the US that has been written about so much?
There's definitely reason for concern and I think that Americans should absolutely be paying attention whenever these types of things come up. What is particularly troubling here is the idea that the president and administration officials seem to be trying to manufacture an emergency in order to achieve a political goal. That's where I think the real danger comes in. I talked earlier about the declaration of emergency with respect to various crises around the world and the imposition of sanctions. But I'm not sure in the past anyone's ever had the sense that a president was doing that in order to fulfill campaign promises.
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