The wall is not a national emergency

President Donald Trump has proffered the dangerous idea of unilaterally building a wall along the country’s southern border with Mexico by declaring a “national emergency,” which he has the power to do under the National Emergencies Act (NEA).

The president does not need to justify the situation to declare an emergency under the NEA, only stipulate which of the 136 different statutory emergency powers he proposes to use. These powers include provisions permitting land acquisition in times of emergency, use and control of public airports and control of broadcast station licenses. It would be possible to craft an emergency declaration to enable President Trump access to land to build his wall as well as to limit information to the public about the wall’s construction. Most incredibly, given our current government shutdown, the NEA would permit these actions and allow the president to re-allocate funding for the duration of the “national emergency.”

He’s granted this ability under reasoning that says the president sometimes needs a set of extraordinary powers to respond to extraordinary events, say the first few hours or days of a national crisis when it might be impossible, or impractical, for Congress to pass special legislation to address the matter. That, however, is not what is happening here. Congress has had plenty of time to consider Mr. Trump’s unpopular wall and has decided against funding that project. Mr. Trump is not considering declaring an emergency because he needs extraordinary powers to respond to extraordinary events, but because he wants to sidestep the legislative process entirely.

Prior to the NEA, passed by Congress in 1976, there was neither statutory authority for a presidential declaration of emergency, nor mechanisms to check the president’s emergency powers. With the NEA, Congress codified the process of declaring a national emergency by executive order as well as a legislative check to the power. The current law only allows Congress to terminate the state of emergency by passing a joint resolution and allows members to avoid even considering such a resolution for up to six months. However, Congress has rarely exercised its power to check presidential use of emergency declarations. As compiled by the Brennan Center for Justice, there are nearly 60 declared national emergencies since 1979 that are still in effect for which Congress has never even considered a joint resolution to end emergency declaration — despite the textual requirement for Congress to address each emergency declaration within six months of enactment.

In the event Mr. Trump declares a National Emergency to build his wall, the House would likely attempt to pass a joint resolution to rescind the emergency declaration immediately. By the text of the law, the Senate would then have 15 days to consider the resolution. However, given Congress’ historical lack of oversight of emergency declarations, the Senate may decline to take up such a resolution at all, or (even more concerning) side with the president for purely political reasons. Furthermore, there is no prohibition on a president re-enacting an emergency declaration after Congress terminates it under the NEA.

As the 116th Congress begins its first full week of work, members should critically assess the NEA and the current expansive executive powers that have been delegated to the executive. The national emergency framework poses a serious and real threat to our democracy when it is used to circumvent our carefully crafted checks-and-balances system. Presidential declarations should be easier for a single body of Congress to revoke, and they should last for days not years. Presidents should be required to articulate why they need special emergency powers, and the reasonableness of that justification should be reviewable by the courts. Expenditures permitted during a national emergency without congressional approval should be capped, and the president’s ability to reenact an emergency declaration that had been terminated by Congress prohibited. Without reform, the NEA remains a legal loophole for the executive to bypass congressional oversight — and while maybe not by this president, and maybe not to build a wall, it will at some point be abused.

Maggie Davis (mddavis@law.umaryland.edu) is a senior law and policy analyst at the University of Maryland Center for Health and Homeland Security, where Christopher Webster (cwebster@law.umaryland.edu) is the Public Safety Technology Program director.

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