At 10 a.m. on February 15, in the White House Rose Garden, President Donald Trump announced that he would be declaring a national emergency in order to procure the funding for his border wall between the U.S. and Mexico. Though there has been talk of the president making such a move in the past few weeks, the announcement nonetheless sent shockwaves through Washington and beyond.
“We’re talking about an invasion of our country,” Trump said, “with drugs, with human traffickers, with all types of criminals and gangs.”
Democratic leaders Senator Chuck Schumer and Representative Nancy Pelosi called the move a power grab. In a joint statement, they said the act does “great violence” to the Constitution. Further, they said, “This is plainly a power grab by a disappointed President, who has gone outside the bounds of the law to try to get what he failed to achieve in the constitutional legislative process.”
Several Republican legislators have similarly expressed shock and dismay, including Senators Rand Paul, Marco Rubio, and Susan Collins.
I, too, want stronger border security, including a wall in some areas. But how we do things matters. Over 1,000 pages dropped in the middle of the night and extraconstitutional executive actions are wrong, no matter which party does them.
— Rand Paul (@RandPaul) February 14, 2019
The move is being called “extraconstitutional” and something “all of us will come to regret.” Here’s why.
What is a national emergency?
Declaring a national emergency effectively gives Trump the power to act without permission from Congress. Passed in 1976 and signed into law by former President Gerald Ford, the National Emergencies Act allows the president to declare a national emergency, which then “activates emergency powers” that allow the president to effectively deal with a problem without getting gummed up in a labyrinthine system of checks and balances.
According to Quartz, some of these emergency powers may include the ability to “seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.”
Why did Trump declare one to fund a wall?
President Trump says “everyone knows” walls work. “Nancy knows that. Chuck knows that.” pic.twitter.com/Q9CO4T9ooS
— Eamon Javers (@EamonJavers) February 15, 2019
Of the declaration, Trump said that plenty of national emergencies have been declared before—for far less inconsequential things. “They sign it, nobody cares…for far less important things,” he stated.
What he’s saying (and what he has claimed frequently in the past) is that this is a matter of utmost importance to national security. But effectively, the real reason Trump declared a national emergency is because one of the special powers conferred to presidents under this law is access to funding that wouldn’t otherwise be available.
In December, he refused to sign any funding bill that didn’t include at least $5.7 billion for his border wall. When Democrats would not give him the money, he shut down parts of the government in order to extort the border wall money from Congress and only signed a temporary funding bill at the end of January. Today is the deadline to sign another funding bill, or another shutdown will happen as of midnight tonight. What’s important here is that legislators refused to add his requested border wall funding to any spending bill, so he is using this law to bypass Congressional checks and balances on presidential power and get the funding himself.
Has anything like this happened before?
There are currently 28 active national emergencies, according to CNN, one of which was declared by the Carter administration in the 1970s. (That one prevents Iranian government property from entering the U.S., and has been subsequently renewed every year by all presidents.) National emergencies have been declared in some form or another since at least World War II. But, per the Washington Post, most were “economic sanctions against foreign actors whose activities pose a national threat.”
To declare a national emergency in order to procure funds for a pet project that’s heavily freighted with racial rhetoric? Experts claim that this move is not only unprecedented, but that, if the declaration is successful, it will forever change the balance of power in the U.S.
Is this anything like former President Barack Obama’s “executive overreach”?
Throughout the duration of former President Obama’s eight years in office, he was accused by everyone from Fox News to the Cato Institute to Republican legislators to Trump himself of “executive overreach” in the former of executive orders. In fact, Trump once called Obama’s use of executive orders impeachable.
That said, over the course of eight years, Obama signed 276 executive orders, an average of 34.5 per year, according to the Federal Register. Trump has signed 95 in just over two years, an average of about 45 per year thus far.
Further, Obama declared only 12 national emergencies during his presidency, all of which save one were related to foreign interests. Per the Associated Press, the only national emergency “not centered on foreign interests” was a 2009 measure to tackle the H1N1 flu epidemic.
What does this mean for the U.S.?
Does this mean that Trump just gets what he wants? Will we see construction crews down at the southern border before we know it?
Not quite yet. The National Emergencies Act is a provision that allows Congress to end a national emergency by issuing a joint resolution. In other words: the two chambers of Congress need to agree that either the president is acting irresponsibly or the threat is diminished and issue an order declaring the emergency terminated.
That, however, would require the Republican majority in the Senate to agree to a joint resolution. Given how many Republicans have expressed dismay at Trump initiatives in the past but have still voted to support them, that feels unlikely.
If Congress doesn’t issue a joint resolution, there is still the judicial system. Across jurisdictions, people will file lawsuits, and even the Justice Department has told the White House that his move is “likely to be blocked.” So despite the unprecedented attempt at a power grab, right now this national emergency declaration is just that: an attempt. Nothing is yet set in stone.