National Emergency

            The topic of discussion for this Constitution Monday concerns the national emergency on the southern border. President Donald Trump claims that there is an emergency on the border, but the Democrats in Congress plus a few rogue Republicans say there is not. Trump declared a national emergency, and both Houses of Congress passed a joint resolution trying to overturn Trump’s declaration. 

            The Democrat-controlled House of Representatives pass the resolution last month with a vote of 245-182, and the Republican-controlled Senate passed it last week with a 59-41 vote. There were twelve Republicans who joined the Democrats to go against the President.

            The trouble with the joint resolution is that it must be signed by Trump to become effective, and he says that he will veto it. “I’ll do a veto. It’s not going to be overturned. It’s a border security vote.”

            There are thousands of people pouring over the southern border in an invasion of a sovereign nation. Yet Democrats refuse to admit that there is a problem and refused to fund a border wall. Senator Ted Cruz (R-Texas) said that the vote was difficult because there is a legitimate concern about the emergency powers that Congress has granted to the President over the past fifty years. He ultimately voted against the resolution because the vote was addressing a border crisis. “We cannot end this emergency without securing our southern border, and we cannot secure our border without building a wall. 

            Senator John Cornyn (R-Texas) put my thoughts into words, “When your negotiating partners refuse to take a seat at the table, normal goes out the window. Our colleagues across the aisle left the president with few options to fund what he believed were so important for the nation’s security, and that’s what led us to this situation.”

            If the Democrats – under the direction of Nancy Pelosi and Chuck Schumer – would have negotiated in good faith, they would have approved funding for a barrier on the border. They obviously do not want a barrier of any kind – whether it be a fence or a wall – that would stop potential voters from coming into the nation.

            There are numerous attorney generals who claim that Trump has authority to declare a national emergency, while there are others who claim that he does not. This site seems to say that he can. 

§1621. Declaration of national emergency by President; publication in Federal Register; effect on other laws; superseding legislation

     (a) With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

    (b) Any provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect (1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and (2) only in accordance with this chapter….

Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington University, is one of the people saying that Trump has authority to declare a national emergency. He wrote the following in January before the declaration of a national emergency was made.

Congress has refused the funds needed for the wall, so Trump is openly claiming the right to unilaterally order construction by declaring a national emergency. On its face, that order would undermine the core role of Congress in our system of checks and balances. I happen to agree that an emergency declaration to build the wall is unwise and unnecessary. However, the declaration is not unconstitutional….

The problem is Trump does have that power because Congress gave it to him….

… Congress expressly gave presidents the authority to declare such emergencies and act unilaterally. The 1976 National Emergencies Act gives presidents sweeping authority as well as allowance in federal regulations to declare an “immigration emergency” to deal with an “influx of aliens which either is of such magnitude or exhibits such other characteristics that effective administration of the immigration laws of the United States is beyond the existing capabilities” of immigration authorities “in the affected area or areas.” The basis for such an invocation generally includes the “likelihood of continued growth in the magnitude of the influx,” rising criminal activity, as well as high “demands on law enforcement agencies” and “other circumstances.”

Democrats have not objected to use of this authority regularly by past presidents, including roughly 30 such emergencies that continue to this day. Other statutes afford additional emergency powers. Indeed, a report by the Congressional Research Service in 2007 stated, “Under the powers delegated by such statutes, the president may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.”

Congress spent decades yielding authority to the executive branch. When it agree with the president, such might authority was even celebrated….

Congress can act to stop circumvention under the National Emergencies Act. Trump must notify Congress of his declaration and detail the powers being claimed under that law. Congress could and should negate the declaration with a vote of both chambers. However, that does not make the declaration unconstitutional. Any declaration would create a myriad of legal issues and likely face an immediate legal challenge. Two questions that a court would have to consider are the source of the authority and the source of any funds. The latter is where some challenges could arise.

Congress gave Trump such authority in the National Emergencies Act, augmenting claims of inherent authority, but the source of the funds could be more challenging. Under two laws in Title 10 and Title 33 of the United States Code, he could seek to use unobligated funds originally set aside for military construction projects, or divert funds from Army civil works projects. There are limitations on the use of such money, and there could be strong challenges to the use of unobligated funds in other areas. There is money there to start but not nearly enough to finish such a wall without proper appropriation. Recall Obama funded the undeclared war in Libya out of money slushing around in the Pentagon, without the new strict constitutionalists objecting from the Democratic side of the aisle.

            From the paragraphs I quoted from the U.S. Code and the words of Turley, it sounds to me like Trump has the authority to declare a national emergency. With so much opposition to declaration of a national emergency and the determination to build a barrier along the southern border, the declaration will most likely end up in the court system. This means that the President would have to wait weeks, months, maybe years to be able to build the barrier. This also means that hundreds of thousands more illegal aliens could overrun our border before we get a barrier.