There has been much speculation about whether Donald Trump will declare a state of emergency and order the wall built. Can he? Vice President Mike Pence said that White House lawyers were looking into that. Will he? That remains to be seen.
…the Framers intended for the Executive Branch to be able to act more quickly than Congress…
After telling reporters that he could – and might – do it, it seemed quite likely to be the subject of his Oval Office speech. However, Trump did not make any mention of declaring a state of emergency and building the wall without congressional approval. He did implore lawmakers to act, calling the border situation a humanitarian crisis.
Though he beseeched Congress once more, the national emergency option has not been removed from the table. So how exactly would that work? Well, the short answer is: It’s complicated, and no one really knows for sure at the moment. As for the long answer …
The National Emergencies Act of 1976
While the president’s authority to declare a state of emergency isn’t expressed in the U.S. Constitution, it long has been held that, since the Framers intended for the Executive Branch to be able to act more quickly than Congress, such emergency powers are implied. Ideally, this is quite limited in scope. Presidents declaring national emergencies where none exist simply as a way to push their agendas smacks of despotism.
Enter the National Emergencies Act of 1976.
This law was adopted to limit executive emergency powers and prevent them from being abused. The president can still make his declaration for pretty much any reason, but he’ll gain no additional authority by doing so until he declares the desired power and shows legal justification for it.
According to Subchapter III:
“When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specifications may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress.”
In other words, if Trump wants to take already-appropriated funds away from something else to build the wall, he is going to have to find a law that gives him the power to do so during an emergency.
The reason no one really knows for sure whether he can do it is because no one really knows for sure how many laws grant additional executive powers during emergencies. It is estimated that there could be around 400 regulations that do so – but then again, there could be more.
Finding out for sure is next to impossible. There are 125 volumes of the United States Statutes at Large – the permanent collection of all laws and resolutions passed by Congress – and that doesn’t include case law or regulatory provisions. How long would it take to comb each volume? Well, number 125 is 2,204 pages long. However, there are a quite a few folks digging, and some possibilities are beginning to surface.
One possibility is 33 U.S.C. 2293. This law allows for the termination or deferment of Department of the Army civil works projects deemed unessential to the national defense – like maintaining waterways, floodplains, and dams. Both the money and the personnel then can be used for other construction projects necessary to the national defense. The most recent relevant appropriations bill to be passed shows that the Department of the Army was granted $6,998,500,000 for its civil works program. However, 33 U.S.C. 2293 allows only unobligated funds to be diverted, so there might not be enough money left to make it happen.
If the president takes this route, he’ll likely use the same humanitarian crisis explanation from his speech to justify it.
The same bill grants the Department of Defense a total of $7,596,733,000 for construction purposes. According to 10 U.S.C. 2808, after either a declaration of war or national emergency, the Secretary of Defense can begin military construction projects using any of these funds that remain – including those allocated for housing.
Trump could potentially work the “threat to national security” angle to justify this route.
There are almost certainly other possibilities, but the issues that could crop up are whether they apply to the National Emergencies Act, whether the president can show their relevance to the emergency of border security in some way, and how much money is left in each.
Regardless of what law he chooses to justify the wall – if he actually chooses to invoke emergency powers, which he very well might not – the president will invariably face legal challenges. If Donald Trump spat out a window, someone would try to sue him – so you can bet any decision to circumvent Congress will not go unchallenged.