‘What constitutes a real national emergency’?
It wasn’t a real emergency, of course, which raises the question: What constitutes a real emergency, and how do we recognize it? And while on the subject, what are the president’s powers with respect to national emergencies?
It turns out that national emergencies, at least in law, aren’t terribly rare. More than 50 national emergencies have been declared by presidents since the National Emergencies Act became law in 1976. Of those, 31 remain active, ongoing “emergencies” today.
Almost all ongoing national emergencies relate in some way to foreign policy and international engagement. For example, the Iran hostage crisis, the 1995 Jerusalem bombing, and Colombian drug trafficking have all prompted national emergency declarations. In contrast, President Trump’s plan to use the power of emergency declaration to wrestle spending authority from Congress appears to be a relatively unique construction of that legal authority.
Can he do it? He can certainly try, and the law would seem to support the effort.
The National Emergencies Act does not describe what, exactly, an emergency entails. It mostly outlines the process by which an emergency is declared, without defining the sort of situation that would justify that action. So, if President Trump believes that a “national security and humanitarian crisis” at our southern border constitutes a national emergency, he is essentially at liberty to declare one. He could then use two other authorities to reprogram existing money for military construction related to the emergency.
It is likely that the president will, as public reports suggest, take money from the Army Corps of Engineers budget, which was authorized last year as part of a disaster spending bill, and reallocate it to wall construction. In other words, President Trump likely does have the emergency powers to take a portion of the $13.9 billion allocated for disaster relief in Puerto Rico and Florida and put it to work building a border wall. To be clear, there is no new money; the president would have to take money away from existing priorities.
Would the declaration be challenged? Again, almost certainly.
Individuals and states affected by the wall will say that they would be injured by its construction, and will go to court. They will suggest that the president’s national emergency declaration is a sham, and that it is merely a tactic to circumvent Congressional opposition. To be fair, some of the president’s rhetoric gives his critics ammunition to support that contention. When, for example, the president says that he is invoking an emergency because Congress won’t agree with him, he is doing himself no favors.
Still, in the normal course of events, courts defer to the president’s determination of facts that support an emergency declaration — a precedent that will support his case. We must acknowledge, however, that border wall litigation will mirror recent litigation over the travel ban and steel tariffs, in which claims about national security threats have been met with a great deal of judicial skepticism. In the end, the administration won the travel ban case, but not without a great deal of controversy.
There will likely be political challenges as well. If the president succeeds this time around, it simply means that next year’s budget fight will be about provisions proposed by the House to restrict the uses of next year’s funding and prevent it from being reprogrammed.
There are long-term political risks in this course of conduct of which conservatives should be wary. It is very difficult to see how President Trump’s use of the emergency declaration authority in this manner can be cabined or limited. It is easy, for example, to imagine that President Warren might use the same authority to fix the emergency of climate change, or the lack of water treatment facilities in Flint, Michigan.
And so, a bit like our fictitious Russians in New England, in the end, the concept of an emergency is really in the eye of the beholder. Or, in this case, in the eye of the president.
