Trump could declare a national emergency over border security, but should he?

FILE - In this Nov. 11, 2018 photo leadership from the Department of Defense meet with leadership from U.S. Customs and Border Protection in regards to Operation Secure Line in Hidalgo, Texas. (Photo: Ozzy Trevino /

As talks stalled between the White House and Congress and the partial government shutdown entered its third week, President Donald Trump said he is considering invoking emergency powers to bypass Congress and build his long-promised border wall.

Trump said Sunday that his administration was looking "very strongly" at an emergency declaration if Democrats in Congress refuse to appropriate money for the wall.

"We're looking at a national emergency, because we have a national emergency," Trump said. "We have a crisis at the border of drugs, of human beings being trafficked all over the world. They're coming through. And we have an absolute crisis, and of criminals and gang members coming through. It is national security. It's a national emergency."

Vice President Mike Pence updated reporters Monday, saying that Trump is still considering the emergency declaration but "he's made no decision on that." He argued that Democrats are refusing to negotiate ways to address a border crisis that has "gotten a lot worse."

Even before the partial government shutdown began, the White House said it would resort to extraordinary measures to fund the wall, including shifting money from the Department of Defense to the Department of Homeland Security. Trump is currently asking Congress for $5.7 billion which would fund 234 miles of new physical barriers and other border security priorities.

Asked why the president had not yet declared an emergency, Trump's acting chief of staff Mick Mulvaney acknowledged Sunday, "It's not easy to do."

Members of Congress are divided on the question of Trump's authority to declare a national emergency over the alleged crisis at the border.

The new Democratic chairman of the House Armed Services Committee Rep. Adam Smith of Washington said Sunday that Trump technically has the authority to declare an emergency, but he will be hard-pressed to make the case politically. "In this case, I think the president would be wide open to a court challenge saying, where is the emergency?"

Other lawmakers pushed back harder, arguing the president has neither the authority or the political support to bypass Congress and reallocate funds for the wall. Rep. Adam Schiff, D-Calif., called the president's national emergency scheme "a nonstarter."

The issue essentially boils down to two questions: could he and should he?


The president has broad authorities when it comes to national security, both under the Constitution and through a series of laws passed in recent decades, most significantly, the 1976 National Emergencies Act.

Under the 1976 law, Congress provided no requirements or limitations on what constitutes a national emergency, in effect, allowing the president to declare a national emergency at his discretion. However, the president must formally declare the existence of a national emergency before being granted emergency powers. He must specify what statutory authorities would be used during the emergency and he must go back to Congress within two years to either extend or end the emergency declaration.

According to Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program, those who are saying the president cannot declare a national emergency over the conditions at the border "are underestimating the extent of the authority."

The more difficult question is whether there's a statute that would allow him to build a border wall. Trump administration lawyers are reportedly researching that issue and looking at ways to move money from the Department of Defense to fund the wall or possibly mobilizing resources within the Federal Emergency Management Administration (FEMA).

"He can't just build a wall without any congressional authority or funding," Gotein continued, noting that issue would be fought in the courts. "The question here is whether the emergency powers give him those. And that is a much closer question than it should be."

Some lawmakers are warning they will challenge any attempt by the Trump administration to invoke emergency powers to bypass Congress and build the wall. During a trip to the border in New Mexico, Rep. Joaquin Castro, D-Texas, said, "We would challenge it in every single way that we could, in Congress, in the courts and otherwise."

Finding the right legal statute could make all the difference. According to a Pentagon spokesman, funding for the border wall could be reallocated from the Department of Defense. "To date, there is no plan to build sections of the wall," Lt. Col. Jamie Davis told reporters last month. "However, Congress has provided options under Title 10 U.S. Code that could permit the Department of Defense to fund border barrier projects, such as in support of counterdrug operations or national emergencies."

The president has come close to invoking emergency authorities in recent months to respond to events along the border. In April 2018, Trump called on governors to deploy the National Guard to the border to head off a few thousand Central Americans traveling with a "migrant caravan." Approximately 2,100 National Guardsmen were deployed to the border to assist Customs and Border Protection agents and deter illegal border crossings.

In late October, ahead of the midterm elections, Trump again called on the military to repel an alleged "invasion" by another migrant caravan. The Pentagon authorized 5,200 active duty troops to be deployed to the border. They laid concertina wire to fortify weak segments of the border, built temporary housing for Border Patrol agents and provided other forms of logistical and medical assistance to CBP. None of the U.S. troops were authorized to directly engage migrants.

In both cases, Trump publicly described the situation as an emergency but stopped short of an official emergency declaration under the National Emergencies Act.

Under a state of emergency, the president may seize property, organize and control the means of production, deploy military forces abroad, institute martial law and restrict travel, for example. Emergency powers were invoked during World Wars I and II, the Korean War, Vietnam and following the terrorist attacks on Sept. 11, 2001. They have also been asserted for non-military emergencies, such as natural disasters, financial crises, health emergencies or other sudden, intense conditions that threaten Americans lives or wellbeing.

In the past, the Supreme Court weighed in decisively against the president bypassing Congress where it concerns the power of the purse. President Harry Truman's emergency order to nationalize the steel industry to end a strike during the Korean War was struck down on the grounds that the president required congressional authorization to carry out his order.


Whether the president should declare a national emergency over his border wall is an entirely different question that is almost entirely political, not legal.

In a series of surprise press briefings, meetings with congressional staff and negotiations with lawmakers, the White House has been aggressively making its case for a national emergency.

In a letter to congressional leaders last week, Trump argued that the United States is "no longer in a status quo situation at the Southern Border but in a crisis situation." As such, the government requires crisis-levels of funding for border security. In its latest request, the White House said it needs $5.7 billion for the wall (or "steel barrier"), $800 million for humanitarian assistance, $798 million for detention beds and $571 million to hire an additional 2,000 law enforcement officers.

The White House outlined the crisis by citing criminal statistics, the rising number of Central American asylum seekers and the volume of drugs trafficked across the southwest border. In each case, there are questions about whether a wall is a solution to the problem.

Over the past 15 years, illegal border crossings have decreased substantially and the total estimated population of immigrants in the country illegally has leveled off at about 11 to 12 million.

At the same time, the U.S. immigration system has been overwhelmed with asylum requests, mostly from Central American migrants. According to the U.N. Refugee Agency, America had more asylum cases than any other country in the world. In 2017, more than 331,700 individuals claimed asylum in the U.S., nearly four times as many as 2013. Immigration courts have case backlogs in the tens of thousands, with average wait times of more than two years.

Critics of the wall have argued that new barriers would not stop asylum seekers who typically turn themselves in to Border Patrol agents, rather than attempting to enter at unguarded parts of the border. A 2017 report found the overwhelming majority of Border Patrol agents believed their most critical needs would not be met by fencing or border wall.

The Department of Homeland Security has started documenting crimes committed by illegal immigrants and the White House recently highlighted the number of terrorist suspects who allegedly tried to enter the U.S. through the southwest border. White House press secretary Sarah Huckabee Sanders claimed Friday that CBP picked up ed up nearly 4,000 known or suspected terrorists last year "that came across our southern border." The assertion was quickly debunked by figures from the Trump administration's Justice and State Departments which found no such instances of terrorists attempting to cross the southwest border.

The White House is also drawing attention to the incidents of sexual assault, trafficking and kidnapping that make illegal immigration a humanitarian crisis. The Trump administration has regularly noted that 90 percent of the heroin consumed in the U.S. and a growing amount of fentanyl enters the country through the southwest border. The Drug Enforcement Agency has stated that the majority of those drugs enter the country through legal ports of entry, rather than undefended sections of the border.

Mark Rom, a professor of public policy at Georgetown University, said the administration's arguments don't add up. "It's hard for me to see how this would trigger an actual state of emergency," he noted. "This is all, in part, about is what is politically acceptable."

Trump's base of supporters overwhelmingly supports the wall, the partial government shutdown to get funding for the wall and are likely to support an emergency declaration that accomplishes the president's signature campaign promise.

"The rest of the sensible population will understand that this is political theater designed to mobilize his base" Rom added. He said the prospect of Trump declaring a national emergency at the border is "dangerous" and "damaging" to the public good and America's democratic political institutions.

Goitein warned that an emergency declaration to bypass Congress would clearly constitute "an abuse of power" by the president. "This is a transparent effort manufacture a crisis where none existed," she stated. "This is what autocrats do to consolidate and hold onto their power in countries government by authoritarian rule. And I think people get that."

President Trump tweeted that he will address the nation Tuesday at 9 p.m. ET to discuss the "Humanitarian and National Security crisis on our Southern Border." The White House also announced the president will travel to the border later this week to meet with Border Patrol agents and others "on the front lines of the national security and humanitarian crisis."

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