In order to secure Trump’s funding for a border wall after almost three months of budget negotiations, Sarah Huckabee Sanders announced via the iPhone Notes app that the president intends to declare a national emergency after passing the spending bill put forward by Congress: “President Trump will sign the government funding bill, and as he has stated before, he will also take other executive action — including a national emergency — to ensure we stop the national security and humanitarian crisis at the border.”
On Thursday evening, the spending bill passed both chambers by a veto-proof majority, finally putting a budget on the president’s desk — without substantial funding for a wall on the southern border. On Friday at 10 a.m., Trump is scheduled to deliver remarks in the Rose Garden on “the national security and humanitarian crisis on our southern border,” suggesting that if the president is to stick to his emergency stunt, he’ll do it just outside of the Oval Office, on an alarmingly warm February morning.
Why Is Trump Signing the Spending Bill and Declaring a National Emergency?
If you replace Obama’s name with his own, one of Trump’s tweets from 2014 justly sums it up:
The bill passed through Congress allocates just $1.375 billion for border fencing, which would cover around 55 miles of bollard or steel-slat fencing — substantially less than the $5.7 billion Trump had requested. By passing the bill and declaring a national emergency, Trump is able to get his wall funding, while avoiding the volleys of criticism that both Democrats and Republicans would hurl at him for not passing the spending agreement, and the major dips in his polling numbers created by the first shutdown.
Is Declaring a National Emergency at the Border Legally Sound?
The move is a questionable reach of executive authority, to say the least. Because the situation at the border is not a real emergency, and because Congress chose not to provide significant wall funding, the president is putting himself at the forefront of a self-made constitutional crisis — again. “This is a real institutional threat to the separation of powers to use emergency powers to enable the president to bypass Congress to build a wall on his own initiative that our elected representatives have chosen not to fund,” Syracuse law professor William C. Banks told the New York Times.
On Thursday, Nancy Pelosi announced that if the president declares a national emergency, Democrats would “review our options” of legal actions to halt his order.
“It’s important to note that when the president declares this emergency, first of all, it’s not an emergency. What’s happening at the border, it’s a humanitarian challenge to us. The president has tried to sell a bill of goods. But putting that aside, just in terms of the president making an end run around Congress, here he said let us respect what the committee will do, then walks away from it.”
The Justice Department also reportedly weighed in, informing the White House that a national emergency declaration would be immediately, if temporarily, blocked by the courts.
Where Will He Get the Money, and Who Will Build It?
It wouldn’t be the first time Trump has attempted a major construction project with shoddy funding prospects. According to Foreign Policy, Congress expects that the Pentagon has $21 billion in “unobligated military construction funding,” money normally set aside for projects including the construction of hospitals and family housing both in war zones and at home. Trump would call upon a legal provision that gives the president authority to reroute military construction funds during a national emergency. However, the White House would have to prove that the money is being used “in support of the armed forces.” “There will be legitimate question about whether building a fence along the border is in support of the armed forces,” one aide told Foreign Policy. “That would be worked out in court.” Bloomberg reports a smaller number — around $8 billion — pulled from the DOD’s military construction funding and drug interdiction programs, as well as some from the Treasury Department’s drug forfeiture program.
Likewise, if Trump expects the troops to build the wall, he would have to make the legal argument that “a border wall administered by Customs and Border Protection requires the use of the armed forces,” said national security law expert William Banks, in an interview with Vox.
What Sort of Precedent Does It Create?
Immediately? A bad one. “It sets a precedent that a president can, without regard to an actual existence of an emergency, use this tool to evade the normal democratic process and fund projects on his own,” Banks told the New York Times.
But if the emergency declaration is deemed constitutional, Trump’s decision could create an Executive branch opportunity to prioritize real emergencies in the future. As Marco Rubio put it in January: “If today, the national emergency is border security … tomorrow the national emergency might be climate change.”
Nancy Pelosi presented the same line of thought on Thursday: “If the president can declare an emergency on something he has created as an emergency, an illusion that he wants to convey, just think about what a president with different values can present to the American people. You want to talk about a national emergency? Let’s talk about today,” said the Speaker, referring to the anniversary of the Parkland shooting.
“He may want to talk to a good lawyer,” Senator Patrick J. Leahy of Vermont, the leading Democrat on the Appropriations Committee, told the New York Times.
Under the National Emergencies Act 1976, Congress can pursue a “joint resolution of termination” to kill the emergency declaration if lawmakers believe the president is acting outside his authority. Joaquin Castro tweeted that he would pursue such action if Trump called for an emergency to build the wall. If the Democratic-controlled House passes the bill, the Senate must vote on it within three weeks. If the resolution passes, the president could always veto the motion, assuming it has not passed with supermajorities in both chambers.