With no end in sight for the ongoing government shutdown, President Trump has again floated the idea of declaring a national emergency in order to secure funds for his long-promised border wall without consent from Congress.
Trump said Friday it would be “surprising to me” if he did not make an emergency declaration if talks with Democrats fail.
“If this doesn't work out, probably I will do it. I would almost say definitely,” Trump said. Trump asserted that he has “the absolute right to declare a national emergency,”
Just what that would mean and how much authority it would grant Trump remains to be seen.
Presidents have called national emergencies in response to terrorist attacks, cyber attacks, hostage situations and other such threats. The National Emergencies Act does not specify exactly what constitutes an “emergency.”
Trump, who has already vowed to keep the government closed as long as it takes to secure funding for a wall along the U.S.-Mexico border.
He first floated the prospect of an emergency declaration last week.
“We can call a national emergency because of the security of our country,” Trump said Friday during a news conference at the White House. “We can call a national emergency and build it very quickly. But if we can do it through a negotiated process, we’re giving it a shot.”
The number of people attempting to enter the country illegally has plummeted in recent years, while Trump and his top officials have taken to using skewed statistics to gin up support for his wall.
Should he declare an emergency, Trump would not have free-range powers, said Kim Lane Scheppele, a legal scholar and professor at Princeton University’s Center for Human Values.
A President “can only make use of specific powers that Congress has put into law to be used precisely when the president declares an emergency,” she told the Associated Press.
Trump would have roughly 136 special provisions at his disposal, including laws allowing him to reallocate military spending on construction projects for the wall and others that even would even allow him to shut down electronic communications or freeze bank accounts.
But Trump would have to tell Congress exactly which laws he’s using — likely one related to using military funds for the wall.
“Once he declares an emergency, he must specify which emergency powers he is using — and he’s limited to those already in the law,” Scheppele said.
Elizabeth Goitein, the co-director of the Brennan Center for Justice's Liberty and National Security Program, laid out how broad and ambiguous many of the other powers could be.
“These laws address a broad range of matters, from military composition to agricultural exports to public contracts,” she wrote in the Atlantic. “For the most part, the president is free to use any of them; the National Emergencies Act doesn’t require that the powers invoked relate to the nature of the emergency.”
One provision would allow the president to suspend a law that prohibits the testing of chemical and biological weapons on unwitting human subjects. Another allows members of the Coast Guard to serve as notaries public in times of national emergency, the Brennan Center noted.
Congress gave the executive branch the authority to declare such emergencies and act unilaterally when lawmakers passed the 1976 National Emergencies Act.
Currently there are 31 active national emergencies in the country, with one dating back to the Carter administration.
President Carter declared a national emergency in 1979 related to the Iran hostage crisis. Other ongoing emergencies include one declared by President George W. Bush following the Sept. 11 terrorist attacks and others relating to sanctions against foreign actors.
Trump has issued three national emergency declarations during his time in office. One was meant to punish foreign actors who interfere in American elections, while another was used to slap sanctions on human rights abusers around the globe and on members of the Nicaraguan government related to corruption.
A national state of emergency expires after a year unless renewed by the President.
Critics and opponents have argued that Trump’s threat to use such a declaration to build the wall without approval from Congress is nothing short of an abuse of power.
“We would certainly oppose any attempt by the President to make himself a king and a tyrant by saying that he can appropriate money without Congress,” Rep. Jerry Nadler (D-N.Y.), the chair of the House Judiciary Committee, said Monday. “That is perhaps the most dangerous thing he is talking about since he became President.”