President Donald Trump plans to sign the bipartisan spending bill to avoid another government shutdown, but he has not given up on funding for the border wall. The White House announced Thursday that Trump could declare a national state of emergency over the wall, invoking broad powers that fund military construction projects.*
With the shutdown deadline looming, Congress has closed in on a deal that provides only $1.375 billion of the $5.7 billion Trump requested to build a wall on the southern border. The administration has already adjusted for this failure: At campaign rallies, "build the wall" has become "finish the wall."
But Trump might have access to more funding if he declares a national emergency, as he threatened to do last month, saying, "If we don't get a fair deal from Congress, the government will either shut down on [February 15th] again or I will use the powers afforded to me under the laws and the Constitution of the United States to address this emergency."
On Thursday, Press Secretary Sarah Sanders confirmed these plans. "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," she said in a statement.
Trump has walked back these threats in the past. What will it mean if he follows through?
Trump Has Access to Sweeping Emergency Powers
U.S. presidents have far-reaching emergency powers with few congressional limitations. Under the National Emergencies Act of 1976, there is no legal threshold for a national emergency, meaning the situation at the U.S.–Mexico border could qualify, despite evidence that immigration does not pose a terror-related threat to national security.
As Pacific Standard has reported, emergency powers include 136 statutes that touch on military and criminal law, and 96 require nothing but the president's signature. "Some are highly potent and subject to abuse, while others are already being misused as convenient fixes to non-emergency problems," writes Elizabeth Goitein, co-director for the Brennan Center for Justice's Liberty and National Security Program.
While experts say Trump's willingness to use the powers to further his political agenda is unusual, many presidents have done something similar: There are currently 31 outstanding national emergencies, many of which get renewed annually—everything from sanctions on terrorist groups to the 2009 swine flu pandemic. "There's little restraint, and the courts are very hesitant to challenge the executive on declarations of emergency, in part because it's seen as something that the executive has more expertise in," says Andrew Boyle, counsel in the Brennan Center's Liberty and National Security Program.**
The Funding Depends on Specific Statutes
When a president declares a national emergency, they must also identify the specific powers relevant to the threat. Legal experts say Trump would likely cite two laws for a border wall declaration, 10 U.S.C. 2808 and 33 U.S.C. 2293. The first authorizes the secretary of defense to "undertake military construction projects," and the second makes funds, personnel, and equipment available from the Army's civil works program to "projects that are essential to the national defense." These would give Trump more control over military and construction projects.
Although emergency powers are far-reaching, the laws' individual provisions constrain what an executive can do with funding. For example, the statute that covers military construction projects, 2808, specifies that "projects may be undertaken only with the total amount of funds that have been appropriated for military construction"—and only for emergencies that require "the use of the armed forces."
"Any lawsuit would have to deal with the specific language of those various provisions—language like "military necessity," Boyle told Pacific Standard last month. Is building the wall of military necessity? Trump's opponents will likely argue otherwise. Many of these individual laws are untested, though, so there's little legal precedent.
The Declaration Could Face Legal Challenges
Others have suggested there could be constitutional restraints on Trump's potential use of non-appropriated funds. For example, you could make the case that Trump's politicized use of the declaration would violate Congress' "power of the purse" in Article I, an important check on the executive branch.
Building the wall itself raises another possible issue: "The government only owns about one-third of the property along the southern border, so whether they build on their own property or try eminent domain, it raises a whole host of other issues that would have to be addressed in litigation," Boyle says. (The Washington Post reports that some ranchers along the border have already objected to federal seizure of their land.)
Lastly, congressional override of the national emergency is "one possibility—a weak possibility," Boyle says. This would require a veto-proof majority in the House of Representatives and Senate.
It's more likely that the saving grace will be Trump himself, who has previously walked back his threat. Goitein argued last month in The Atlantic that by wavering and delaying this decision, "Trump is both taking away any legitimate justification for emergency action." In other words, it's harder to make a case to appropriate funds for a national emergency that the president himself has called "unnecessary."
*Editor's Note: A version of this story first appeared on PSmag.com on February 14th, 2019, with the headline "Trump Plans to Declare a National Emergency Over the Border Wall. What Legal Challenges Could He Face?" Trump declared a national emergency on February 15th, 2019.
**Update—February 15th, 2019: A previous version of this article reported that there were 59 outstanding national emergencies in the United States. In U.S. history, 59 emergencies have been declared, but only 31 are outstanding.