National Emergency Concerning the Southern Border of the United States
On February 15, 2019, President of the United States Donald Trump declared a National Emergency Concerning the Southern Border of the United States (Proclamation 9844) activating executive powers provided under the National Emergencies Act to utilize the armed forces and construction powers provided by (10 U.S.C. (a) § 2808 (a)). The emergency was declared after Trump signed, but derided, a bipartisan funding bill containing border security funding that had passed the House of Representatives and the Senate a day before.
Trump had previously threatened to declare a national emergency if Congress did not pass his entire desired program for a wall on the United States–Mexican border by February 15, 2019. Under Proclamation 9844, the Trump administration plans to redirect $8 billion in previously-agreed expenditure and to use the money to build the wall instead. The proposed redirections include $3.6 billion assigned to military construction, $2.5 billion meant for the Department of Defense's drug interdiction activities, and $600 million from Treasury's forfeiture funds. Trump’s declaration was unprecedented in that none of the 58 previous emergency declarations made by the American executive branch involved circumventing Congress to spend money it had expressly refused to authorize or allocate.
- 1 Background
- 2 Announcement
- 3 Legislative action to overturn and presidential veto
- 4 Legal challenges
- 5 Reactions
- 6 See also
- 7 Notes
- 8 References
- 9 External links
Trump campaign and presidency
The Wall Street Journal reported the day of Trump's declaration that his action was the outcome of "two years of political neglect of his signature campaign promise, lost amid competing priorities and divisions within his administration," with no single administration official having been designated to champion funding of the border wall in Congress. Trump rejected a proposal in January 2018 that would have authorized $25 billion for wall construction in exchange for a path to citizenship for Dreamers, as well as a similar proposal the next month. In March, Congress approved a bill providing for $1.6 billion in barrier funding. Threatening to veto the bill, The Journal reported that Trump was surprised to learn that the $1.6 billion was the amount that had been requested in his budget. Trump's budget director Mick Mulvaney then privately advised the president to blame House speaker Paul Ryan for not seeking more funding. Tom Davis, an influential former Republican congressman, observed, "The mistake they made was not coming in right away and coming up with a plan. You wonder why they didn’t try to jam this through when Republicans controlled the House because it’s a lot more complicated now trying to convince Nancy Pelosi."
2018–2019 government shutdown
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Before Trump declared the national emergency, the United States had experienced a federal government shutdown, which ran from midnight EST on December 22, 2018, until January 25, 2019 (35 days). It was the longest U.S. government shutdown in history. It occurred when the United States Congress and President could not agree on an appropriations bill to fund the operations of the federal government for the 2019 fiscal year. The shutdown affected about one-fourth of government activities. It caused around 800,000 employees and 1 million federal contractors to be furloughed or obligated to work without pay. The shutdown was estimated by the Congressional Budget Office to cost the United States economy at least $11 billion.[Notes 1]
The President had demanded that the appropriations bill include for $5.7 billion in federal funds for a proposed U.S.–Mexico border wall. In December 2018, the Republican-controlled Senate unanimously passed an appropriations bill without wall funding. However, Trump refused to support the bill, and it was therefore not considered by the Republican-controlled House.
By mid-January 2019, American opposition to the shutdown had become widespread. That month, representatives elected in November 2018 took office. The newly Democrat-controlled House approved the appropriations bill that had earlier passed the Senate unanimously. Trump said he would still veto any bill that did not fund an entire border wall. Republican Senate Majority Leader Mitch McConnell blocked the Senate from considering appropriations legislation that Trump would veto, including the bill that the Senate had earlier passed. Democrats and some Republicans passed multiple bills attempting to reopen the government.
On January 25, 2019, Trump agreed to endorse a stopgap bill to reopen the government until February 15. However, he reiterated his demand for the border wall funding and said he would shut down the government again or declare a national emergency and use military funding to build the wall if Congress did not appropriate the funds by February 15.
On February 14, the House and Senate passed an appropriations bill funding the government until September 30, the end of the fiscal year 2019. Trump signed the bill into law the following day. The bill includes US$1.375 billion to construct new fencing on 55 miles of the Mexico–United States border.
On February 15, 2019, President Trump spoke to the media in the White House Rose Garden. After signing the spending bill to keep the government open, Trump declared a national emergency over the border crisis, hoping to get access to $8 billion to use for border security. During his announcement, Trump stated, "I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster.” Critics asserted this statement would undercut the rationale for his emergency declaration in court challenges.
To obtain $8 billion for border wall construction, the Trump administration proposes augmenting the earlier February 14th $1.375 billion appropriations bill by diverting other previously-allocated monies: $3.6 billion for military construction, $2.5 billion for the Department of Defense's counter-drug activities, and $600 million from Treasury's drug-asset forfeiture funds. White House officials said that the national emergency specifically enabled the $3.6 billion military diversion while the $2.5 billion from Defense and the $600 million from Treasury were possible due to "presidential discretion".
Roll Call reported on February 21, 2019, that over one-third of the funds the Trump administration had identified for diversion had already been spent by the Department of Defense. In March 2019 the Pentagon issued a list of proposed military construction projects which could be postponed, under the president's emergency declaration, so that their funding could be diverted to build the wall.
Legislative action to overturn and presidential veto
Under the national emergency legislation, Congress can overturn a declaration of emergency legislatively. If the House passes a privileged resolution to overturn, the Senate is required to take up the resolution within eighteen days. If the Senate passes the resolution, by a simple majority vote, the bill goes to the president, who has the option of vetoing it. Congress can override the veto by a two-thirds vote in both houses.
House speaker Nancy Pelosi announced on February 20, 2019 that Democrats would introduce such a resolution in two days. The measure, House Joint Resolution 46, stated: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That, pursuant to section 202 of the National Emergencies Act (50 U.S.C. 1622), the national emergency declared by the finding of the President on February 15, 2019, in Proclamation 9844 (84 Fed. Reg. 4949) is hereby terminated."
The House voted to approve the bill on February 27 by a vote of 245–182, with thirteen Republicans voting in favor. On March 3, Rand Paul became the fourth Republican senator to declare he would vote for the resolution, improving the chances of passage. The next day he asserted that "at least" ten other Republican senators told him they would also vote for the resolution. On March 14, the Senate voted 59–41 to support the bill to overturn Trump's emergency declaration, with twelve Republicans voting in favor.
On March 15, 2019, Trump vetoed the Joint Resolution, calling it "reckless" at a signing ceremony where he signed the veto statement, flanked by members of the Cabinet and law enforcement officials. Pelosi responded by scheduling a vote to override the veto on March 26, 2019.
In his statement declaring the emergency, President Trump acknowledged the inevitability of legal challenges, stating that he anticipated losing in lower courts, but ultimately prevailing in the Supreme Court. The lawsuits are expected to revolve around different issues such as property rights, tribal sovereignty, and the limits of the presidency. Similar court cases challenging the Secure Fence Act of 2006 still remain open over a decade later.
As of February 22, 2019[update], at least six separate lawsuits have been filed. Three lawsuits were filed within days of the announcement of the declaration: El Paso County, Texas filed a lawsuit in the Western District of Texas in concert with the Border Network for Human Rights, Protect Democracy, and the Niskanen Center; Public Citizen sued on behalf of the Frontera Audubon Society and three Texan landowners; and the Citizens for Responsibility and Ethics in Washington filed a lawsuit against the Department of Justice in a case involving a FOIA request.
The Tohono O'odham Nation has raised the issue with the Organization of American States' Inter-American Commission on Human Rights, and the Cocopah, Kickapoo, and Kumeyaay are also considering their legal options.
Some analysts stated that if legally upheld, the declaration would vastly expand governmental power, particularly that of the presidency and the executive branch. Reporter Charlie Savage summarized the political impact of the declaration, saying that "no matter what else happens, Mr. Trump’s willingness to invoke emergency powers to circumvent Congress is likely to go down as an extraordinary violation of constitutional norms—setting a precedent that future presidents of both parties may emulate to unilaterally achieve their own policy goals."
A number of legal scholars called the declaration an "abuse" and a "misapplication" of the National Emergencies Act, with many stating that the declaration threatened the separation of powers in the United States and amounted to a potential constitutional crisis. They said the declaration was a continuation of the expansion of presidential power observed during the 2010s in the United States.
On February 25, a bipartisan group of 58 former senior national security officials and 25 former Republican lawmakers implored Congress to overturn Trump's emergency declaration. The former lawmakers wrote, "It has always been a Republican fundamental principle that no matter how strong our policy preferences, no matter how deep our loyalties to presidents or party leaders, in order to remain a constitutional republic we must act within the borders of the Constitution," while the security officials contended that there is no "documented terrorist or national security emergency at the southern border" nor an "emergency related to violent crime."
Support from Republicans has been divided, with most conservative House Republicans embracing Trump’s action, while opposition was more pronounced among Senate Republicans. Reportedly, because of Trump’s high approval ratings among Republicans, many in the party were concerned that expressing public opposition to the president’s action could result in their political demise. An analysis by FiveThirtyEight found that through February 18, 2019, 34% of the 53 Republican Senators had expressed support for the declaration.
Before the declaration, Senate Majority Leader Mitch McConnell—long a defender of Senate prerogatives—and most other Senate Republicans strongly urged the president to not take the action. After the declaration, McConnell led several other senators in pivoting to support it. Senator Lindsey Graham expressed emphatic support for the declaration. Georgia Senator Johnny Isakson said he "support[s] the president in his decision," and Richard Shelby said Trump has "the power to defend the country, to defend the borders." Senator John Hoeven stated that Republicans "support the president's efforts to strengthen border security," and Senator Kevin Cramer said that Trump "will address the crisis at the southern border, whether or not Congress does." Representative Matt Gaetz stated that he was "proud" of Trump.
Others, including Senators Rand Paul, Chuck Grassley, and Marco Rubio, spoke out strongly against the declaration. Susan Collins said the president is "usurping congressional authority" while Lamar Alexander said the United States' "founders chose not to create a chief executive with the power to tax the people and spend their money any way he chooses." Representative Justin Amash stated that Trump is "attempting to circumvent our constitutional system".
Will Hurd, the only Republican representative for a district along the southern border, said that the national emergency declaration "is not a tool that the president needs in order to solve this problem," and argued that a coherent strategy with increased manpower and technology at the border would be the solution.
Shortly before the emergency was declared, Speaker of the House Nancy Pelosi warned Republicans that this would set a precedent for the next Democratic president to declare a national emergency on gun violence. After the declaration, Pelosi issued a statement with Senate Minority Leader Senator Chuck Schumer stating that they oppose the move. They further claimed that Trump was trying to "shred the Constitution," and that they will seek "every remedy available" according to their statement.
Senator Angus King, who caucuses with the Democrats, called the move "antithetical to our American system of government." Senator Tina Smith, a member of the Minnesota Democratic–Farmer–Labor Party, said the declaration was an "attempt at a power grab."
The House Judiciary Committee announced an "immediate investigation", summoning Department of Justice officials and White House Counsel Pat Cipollone to congressional hearings and requesting various documents from the White House.
Many prominent Republican and conservative commentators expressed concerns that the declaration violated the separation of powers and the powers of Congress. Noted neoconservative and long time Trump-critic Max Boot argued in the Washington Post that the action was Trump's "latest assault on the norms of American democracy" and that "arguably nothing Trump has done to date has been as alarming as his misuse of the 1976 National Emergencies Act." and would set a precedent to allow a future Democratic president to declare an emergency taking unilateral action on gun control and climate change.
Ann Coulter, an early Trump supporter and now frequent critic of the president sharply criticized the move, stating "the goal of a national emergency is for Trump to scam the stupidest people in his base for 2 more years" and that "[t]he only national emergency is that our president is an idiot."
Noting that there will be legal challenges to the action, many commentators also predicted that Trump's own comments during his announcement will make it harder to support his claim that there is an actual emergency. However, conservative radio host Hugh Hewitt said he thought the president had a "good shot at winning" in the Supreme Court.
Some legal scholars considered the declaration of a national emergency as an example of executive overreach and an abuse of the National Emergencies Act, arguing that the declaration would permanently and vastly expand the power of the presidency and the executive branch. While scholars agree that the National Emergency Act enacted on September 14, 1976, allows the president control over the military and construction projects (10 U.S.C. 2808 A and 33 U.S.C. 2293), some, such as Andrew Boyle a counsel in the Brennan Center's Liberty & National Security Program, states Congress, over the years, should have done more to control the way emergency powers are being used had they wanted to deprive the presidency of such powers, or at least put in place checks and balances to prevent abuse of power. Consequently President Trump can argue that Congress has all the constitutional tools to remedy any perceived ill in Congress and that any interference at this stage is unnecessary or an outright overreach by the Supreme Court.
- 84 FR 4949
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The next step for the stop-gap funding effort is the House of Representatives where it is likely to pass despite some conservative opposition.
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The emergency declaration, according to White House officials, enables the president to divert $3.6 billion from military construction projects to the wall. Mr. Trump will also use more traditional presidential discretion to tap $2.5 billion from counternarcotics programs and $600 million from a Treasury Department asset forfeiture fund.
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That includes $3.6 billion from unspent military construction money, $2.5 billion in unspent Pentagon counterdrug funds and $600 million from a Treasury Department asset forfeiture account. But the Defense Department has told lawmakers that only $85 million remains unspent in the counterdrug account, a House Appropriations spokesman said Thursday.
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A barrage of organizations and officials have already pledged to fight this in court.
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Generally, it's a hard case to make that it constitutes the kind of a national emergency that would be able to support the president's move here... But, ultimately, the courts will have to decide whether, indeed, the president has this kind of power. Look, Judy, we're operating under a Constitution that provides checks and balances. And those checks and balances are aimed at trying to limit the power of the president, the power of the Congress, power of the courts. That's why our forefathers created it. A president who now uses a national emergency to bypass the will of Congress with regards to funding for a wall is basically rejecting an important check and balance that was built into our Constitution.
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I reached out to 11 legal experts and asked them to assess the president’s prospects. The consensus seems to be that while there is enough ambiguity in the law to permit Trump to declare an emergency, his decision to circumvent Congress and use the military to build a wall will very likely lose in court.
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Most experts agree that Trump's use of a national emergency is a legally questionable use of emergency powers.
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Experts said the idea of using a national emergency to build the president’s promised border wall would be novel, and both Democrats and outside groups have threatened to sue.
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At the midpoint of his term, however, there remains little question that President Trump exerts an influence on American politics that is straining our core values and testing the stability of our constitutional system. No president in living memory has shown less respect for its tenets, norms, and principles. Trump has assailed essential institutions and traditions including the separation of powers, a free press, an independent judiciary, the impartial delivery of justice, safeguards against corruption, and most disturbingly, the legitimacy of elections. Congress, a coequal branch of government, has too frequently failed to push back against these attacks with meaningful oversight and other defenses.
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Republicans’ endorsement of a potentially dramatic expansion of executive power. There is a potential case to be made that Trump’s action, regardless of what it means for the future, violates basic principles of limited-government conservatism, which is generally opposed to executive overreach and supportive of a strong separation of powers.
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