What to Expect: Showdowns Over the National Emergency

The way some people in political and media circles are talking about a presidential declaration of a national emergency, one could be forgiven for thinking President Donald Trump is declaring war. Certain facts are being either overlooked or misrepresented, though. On Friday, February 15, Trump announced, at a press conference outside the White House, that he is indeed declaring a national emergency relating to the southern U.S. border. Does Congress now have the power to stop the president’s action, and what are the constitutional boundaries of such a declaration?

...a national emergency is nothing new and certainly not unprecedented.

Contrary to some media reports, a national emergency is nothing new and certainly not unprecedented. Most such declarations go almost entirely unnoticed by the general public, and they rarely receive any media coverage. There are, in fact, 31 current national emergencies still in force, according to the federal registry.

National Emergencies: How Many and Why?

Those currently active have been declared, collectively, by the previous three presidents in addition to three already initiated by Trump himself. The authority to do this is well established. National emergencies are declared for a variety of reasons, and they often signify breakdowns in the legislative process. They act as stopgaps, one could almost say, designed to address an issue that is deemed urgent, but has not been resolved in Congress. More often than not, they are aimed at sanctioning foreign individuals or groups in the interests of the national security of the United States or one of its allies.

The unique thing about the nature of this latest declaration, though, is that its primary purpose is to procure money for border construction – funds that have not been appropriated by Congress for such a purpose.

Certain Democrats have suggested that they can simply go through the courts to prevent the national emergency from going into effect. Senate Minority Leader Chuck Schumer (D-NY) falsely claimed that the president needed congressional approval for such an action and, on the Senate floor, Thursday, declared Trump’s intention a “lawless act” and “gross abuse of the power.”

Can Democrats Cancel Trump’s Declaration?

In fact, a president does not need congressional approval to take such action, and the judicial branch has no authority to cancel a national emergency. Termination of a national emergency is ordered by the president or achieved with a joint resolution from Congress, per 50 U.S. Code § 1622, or if the president does not renew the national emergency status within the prescribed period.

While it is possible that the Democrats will easily be able to find a politically partisan judge to issue some form of a temporary injunction against the president, that legal fight is ultimately going to be resolved in Trump’s favor. Congress simply does not have the constitutional authority to overrule the president by fiat – not even through the courts. Since the mechanism by which Congress can terminate a state of national emergency already exists, a court will ultimately rule that congressional Democrats must use that option to attempt to reverse the president’s decision.

Real Battle Will Focus on Appropriations

The actual legal battle will be fought over Trump’s ability to repurpose, or “reprogram,” federal funds to construct border barriers. Under the statutes governing national emergency powers, Trump will be able to repurpose funds from the Department of Defense without objection, provided that the Secretary of Defense consents and informs Congress – which means notifying the appropriate committees, rather than having to seek their approval.

The president does have other lawful avenues of directing funds toward border security but, ultimately, the power of appropriation – the authority to appropriate funds and to legislate the specific use of those funds – lies solely with the Congress.

Additionally, the administration is going to face legal fights with state and local authorities on those sectors of the border where barriers would be constructed. Almost certainly, litigation over the appropriation of funds and actual construction of border walls or barriers is going to form a significant part of the backdrop to the 2020 general election. Can Trump overcome the inevitable Democratic Party narrative that he is behaving like a dictator? Can Democrats afford to campaign for congressional seats – and the White House – against the perception that they are fighting to prevent the securing of the southern border and the ending of the growing humanitarian crisis that goes along with it?