Despite the vast amount of evidence showing immigration does not pose a terror-related threat to national security, President Donald Trump has declared a state of emergency. This declaration, certain to provoke legal challenges, is meant to provide a workaround to fund a border wall outside of Congress’ shutdown deal.*
New York University’s Brennan Center for Justice has identified more than 100 statutory powers that a president can activate in a national emergency—some extreme, and others outdated. Experts say that there two powers that give Trump control over the military and construction projects. (For the wonks, that’s 10 U.S.C. 2808 A and 33 U.S.C. 2293.)
Andrew Boyle, counsel in the Brennan Center’s Liberty & National Security Program, explains what could happen next—and why Congress has sanctioned these far-reaching powers in the first place.
What is the precedent for this? Have other presidents used these emergency powers for their own agenda?
Certainly other presidents have used emergency powers in various ways to some degree. There are 31 states of emergency in effect right now, and [only three] were declared by Trump.
But if you start from the assumption that Trump is going to declare an emergency around immigration on the southern border, and if you assume that is not a valid emergency, but instead is just a sort of workaround because he can’t get Congress to agree to something he wants to do, that is obviously problematic in the way it distorts our political process.
But I also think there is room in that process to point out that Congress, over the years, should have done more to control the way emergency powers are being used in order to ensure that, when you get to a situation with a potentially bad-faith actor, there are more constraints on his or her ability to use those powers.
Why are there so many of these powers in the first place?
The main reason is that there could be situations in which the normal processes and powers that the executive has move too slowly or aren’t sufficient to deal with actual emergencies. [Such emergencies] could take many forms: a military attack, a pandemic, a health scare, or a natural disaster. Congress decides that it wants the executive to have additional flexibility in these extreme circumstances, but it doesn’t want the executive to have these at all times.
Some of the powers we’ve identified are simply outdated—delegations Congress passed, which through the passage of time are no longer relevant, and Congress doesn’t revisit these laws to update them or take them off the books. This executive has a history of blowing through norms that other executives have adhered to, and it’s in situations like this that folks begin to realize they have been passing these laws assuming good faith on behalf of the executive, and perhaps that assumption is not always valid.
In this particular case, Trump could cite two powers relevant to his threat: use of the armed forces and military construction projects. Would these actually enable him to build the border wall?
There would be numerous stages. First: Would he be able to declare a national emergency? The answer is absolutely. There is virtually no restriction on the executive’s ability to declare a national emergency, and that is a shortcoming of the [National Emergencies Act of 1976]. He can cite those [two] laws; the NEA requires him to identify which emergency powers he intends to use. If there are people who are upset about this (and there already are), you get into the question of: What avenues are there for pushback? One possibility—a weak possibility—is congressional override of the national emergency. That would require a veto-proof majority in the House [of Representatives] and Senate, and that’s a challenge.
Another option is a lawsuit of some sort. Assuming [the declaration] goes forward, then any lawsuit would also have to deal with the specific language of those various provisions—language like “military necessity.” There would be arguments about whether building the wall is of “military necessity.”
There are some constraints under 2808 [which covers military construction projects] on the amount of money available, even if the executive were to rely on those powers. The last sentence of that provision says, “Such projects may be undertaken only with the total amount of funds that have been appropriated for military construction.” Also, some people have raised the possibility of constitutional restraints on these statutory provisions and the use of non-appropriated funds in this way.
So there’s no threshold for declaring a situation to be an “emergency” at all?
There is no definition or standard for declaring an emergency in the NEA. In fact, if you look at the emergencies that have already been declared and are in place right now, every year for decades now, the president has declared an emergency in order to get around statutorily mandated federal pay raises. In some cases—in 2008 or 2009—there actually was an economic emergency that would make that valid; in other cases, it’s hard to justify. 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.
Historically, has there been pushback like this on a potential state of emergency?
The NEA itself was kind of a pushback on this abuse of national emergency powers. That’s why it came into effect, and it terminated a whole bunch of emergencies at that time and then instituted some procedures for declaring emergencies and using those powers. But even those provisions of the NEA may not be being fully followed at this time.
Why are there so many national emergencies outstanding?
Under the NEA, the president has to renew the emergencies every year. That includes emergencies that are handed on from past presidents. There’s all sorts of [emergencies]—personnel in military, pay raises—that are renewed every year in large part because it’s convenient. It saves the executive, and the legislature, from having to do the hard work of passing laws that would replace whatever powers are being exercised on an emergency basis. In many of these situations, [emergency states] are simply being abused with the tacit consent of the legislature.
This interview has been edited for length and clarity.
*Editor’s Note: A version of this story first appeared on PSmag.com on January 9th, 2019, with the headline “What Happens If Trump Declares a National Emergency Over the Border Wall?” Trump declared a national emergency on February 15th, 2019.
