The same day President Donald Trump declared a national emergency to redirect billions of dollars to build a wall on the southern border, he made a statement that could entirely jeopardize the legal status of doing so.
The president has been vocal about his frustration with the bipartisan spending bill passed by Congress on Thursday to avoid a government shut down—a bill that he signed on Friday. The bill provides $1.375 billion for roughly 55 miles of fencing. But now that Trump has declared a state of emergency, the White House says he has access to another $8.1 billion to use for a wall without Congressional approval—a move that many are calling a work-around, including the president himself. "I want to do it faster. I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do it much faster," Trump told reporters at a press conference in the Rose Garden on Friday.
Critics of the declaration quickly seized on Trump's statement. "Mr. President, how can this possibly be [a] national emergency if you’re saying you don’t need to do it?" Senator Chuck Schumer (D-New York) tweeted on Friday. But can Trump's statements be used as evidence against the legality of declaring the national emergency?
There is no real legal threshold for declaring an emergency under federal law, and little legal precedent for what qualifies as a "national emergency." But Andrew Boyle, counsel with the Brennan Center for Justice's Liberty and National Security Program, says a challenge to Trump's declaration could reign in the executive's emergency powers for good. Challenges to previous declarations of emergency have focused on the specific provisions that the executive can use to appropriate funds without Congress. In declaring the emergency over the border, the White House has cited a law that makes troops and funding for military construction projects available to the executive so long as doing so is "of military necessity."
Boyle says challengers can easily use Trump's own words to make the argument that building the wall is not a "true" military necessity—especially given Trump considered declaring an emergency for over a month before actually doing so. Since so much time has passed, Boyle says this "is blatantly just a run around Congress, coming at the same time as he signs the budgetary laws into effect."
To build the wall, the president plans to divert funds transferred from the Department of Defense, including $2.5 billion budgeted for "counter-drug activities" and $3.6 billion for military construction projects. He'll also use about $601 million from a Treasury fund devoted to drug control efforts.
California Attorney General Xavier Becerra declared on Friday the state will file suit against Trump, arguing that the redirection of budgeted money violates Congress' power to appropriate funds, and experts expect further action.
The use of funds not appropriated by Congress could raise a host of separate legal issues, such as a Constitutional challenge to the "power of the purse" in Article I or issues with eminent domain, as Pacific Standard reported:
"It's more likely that the saving grace will be Trump himself, who has previously walked back his threat. Elizabeth Goitein, co-director for the Brennan Center for Justice's Liberty and National Security, 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."