Can President Trump Declare an Emergency to Build Border Wall?

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By Christopher Coble, Esq. on February 14, 2019 2:37 PM

Donald Trump campaigned on border security. One of his first executive orders as president directed "the immediate construction of a physical wall on the southern border." And he allowed the federal government to shut down for three weeks to secure funding for wall construction. Now, according to Senate Majority Leader Mitch McConnell and White House Press Secretary Sarah Huckabee Sanders, Trump plans to declare a state of emergency at the southern border to finally get what he wants.

But does the president actually have the authority to force funding of the border wall?

The Power to Declare an Emergency

"President Trump will sign the government funding bill," Sanders said in a statement, "and as he has stated before, he will also take other executive action -- including a national emergency -- to ensure we stop the national security and humanitarian crisis at the border." That government funding bill did not include money for the wall, so Trump has apparently committed to securing that money by declaring a national emergency. But opinions differ as to whether that tactic will be successful.

"Under the National Emergencies Act of 1976," writes NPR's Tamara Keith, "the president can declare an emergency for just about anything." A general Declaration of Emergency under the Act is more limited in scope than disaster declarations, and is often designed to prevent a major disaster from occurring. And, as co-director of the Brennan Center's Liberty and National Security Program Elizabeth Goitein told the New York Times, there are two laws involving military construction projects that the president could invoke to fund and construct the wall once the emergency is declared.

The Power to Terminate One

But that doesn't mean the wall is inevitable. Under the same statute granting the president emergency powers, Congress granted itself authority to terminate the emergency. As of last month, the statute has been invoked 58 time to declare national emergencies, with 31 of them still ongoing. Yet Congress has never terminated an emergency, and only threatened to do it once. George Miller, a former Democratic congressman from California, and others put forth a resolution in 2005 countering then-President George W. Bush's plan to allow government contractors to pay workers less than usual for Katrina-related recovery projects. Bush eventually withdrew that measure.

In the current context, Democrats seem united against any additional funding for the southern border wall, so we can probably expect a similar showdown if Trump follows through with the emergency declaration.

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