Can Trump Issue an Emergency Declaration Directing the Military to Build the Wall?

By Rachel Alexander Published on January 22, 2019

The partial government shutdown is in its fourth week. Democrats show no sign of ending it by agreeing to fund a border wall. President Donald Trump has an idea to end the shutdown and get his wall built. He may issue an emergency declaration directing the military to build the wall. The $5.6 billion he has requested would provide 200 miles of wall.

Trump would justify the action on national security grounds. There is a “crisis at the border,” he says. The unwalled border lets in drugs and enables human trafficking and other crime.

But can he do it?

Must Cite a Law

He can. But he can’t just do it. Presidents can declare national emergencies under the National Emergencies Act of 1976. The Act was designed to curtail the power of presidents. It does not define what constitutes an emergency. But it does require them to specify which federal law authorizes their actions.

Bruce Ackerman, a professor of law at Yale, claims Trump cannot legally declare an emergency.

What law would Trump cite? The Brennan Center has identified 136 statutory powers presidents can use if they invoke a national emergency. One authorizes the secretary of defense to divert funds from an army construction project to military construction and civil defense projects that are essential to the national defense. Another law gives the secretary of defense the power to undertake military construction projects.

Trump could declare an immigration emergency. The Immigration and Nationality Act allows action if an “influx of aliens” is too much for law enforcement. However, the funds under that act only allot $20 million per year. This isn’t enough to cover the $5.6 billion Trump requests.

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Not everyone agrees. Yale law professor Bruce Ackerman claims Trump cannot legally declare an emergency. In fact, he says it would be a federal crime, because federal law prohibits the president from using the military to enforce a domestic law. Congress has created specific exceptions to this law in the past, such as letting the military assist with the response to Hurricane Katrina. But this exception for “major public emergencies” has since been repealed.

According to Ackerman, presidents prior to the National Emergencies Act of 1976 often abused the emergency powers granted to them by Congress. But after the Act was passed, presidents no longer had that latitude.

Opposition

What would happen if Trump did it? What if a majority of Congress agreed with Ackerman? Not much. It would be difficult for Congress to halt a declared emergency. The Act requires a joint resolution from both chambers in order to halt one. Since the GOP controls the Senate this is unlikely. Even if the Senate agreed, the president then needs to sign off on it. Since he won’t, Congress would be required to override the veto. The courts would have to step in to strike down the emergency declaration.

Both Barack Obama and George W. Bush declared national emergencies.

Both Barack Obama and George W. Bush declared national emergencies. They have been declared  in response to the 1979 Iran hostage crisis and the threat of North Korean nuclear warfare.  There are currently 31 emergency declarations in effect. Trump has already declared three. Obama declared 13, 11 of which are still active. President Harry Truman attempted to nationalize the steel mill during wartime. In 1952, he seized the steel mills. However, the Supreme Court shut down his order. There wasn’t a specific law giving him the authority.

Trump said on Friday that he would not declare a national emergency yet. While Trump can declare a national emergency, he may run into opposition in the courts.

 

Follow Rachel on Twitter at Rach_IC. Send tips to rachel.alexander@stream.org.

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