Border Wall or . . . ?: The Legality of Declaring a National Emergency to Build a Border Wall

Written By Kali Schreiner

 

On December 22, 2018, the federal government came to a screeching halt in what is now the longest shutdown in United States history. The government shutdown is attributed to the inability of Congress and President Donald J. Trump to reach an agreement on the appropriation of funds for the 2019 fiscal year.

As a central promise of his campaign, President Trump ensured Americans he would build a border wall between the U.S. and Mexico. In order to achieve this, Trump requested approximately $5 billion in federal funds to be allocated toward the construction of a wall. The proposed spending bill which included the border wall funding failed and a partial shutdown ensued.

What’s Next?

Since the shutdown, President Trump has acknowledged his presidential power to declare a national emergency and move forward with plans to build the controversial wall. On January 4, 2019, he explained, “[w]e can call a national emergency because of the security of our country. We can call a national emergency and build it very quickly.” Several days later President Trump followed up on his previous remarks with a statement to reporters where he further explained, “I may declare a national emergency dependent on what’s going to happen over the next few days.” Although many believed these statements to be idle boasts by the President, Vice President Mike Pence has confirmed that the White House is looking into the legality of President Trump’s ability to declare a border emergency.

Declaring a National Emergency

To date, several legal scholars have expressed their opinion on President Trump’s ability to declare a national emergency in order to fund the border wall project. After a thorough review of constitutional law, most scholars believe that 10 U.S.C. § 2808(a) provides the most support to back the President’s claims that he has the power to declare a national emergency and build the wall. Under this statute, if a president declares a national emergency, military construction projects may be undertaken so long as they are “necessary to support such use of the armed forces.” Although critics question whether current issues at the U.S.­–Mexico border actually constitute a crisis, there is almost no restriction on the president’s ability to declare a national emergency. Additionally, in his most recent address to the nation, President Trump continued to stressing that there is a “growing humanitarian and security crisis at [the] southern border,” further bolstering his claim with respect to a national emergency.

In reviewing the plain meaning of the text of § 2808, the President’s authority to institute a construction project will only apply to a national emergency that requires the use of armed forces. As such, critics have questioned the applicability of § 2808 in relation to the current issues at the Mexican border. Specifically, U.S. Senator Jack Reed recently stated, “we are not at war with Mexico, and the proposed border wall has no core [Department of Defense] function.” To support his statement, he points to a review of the National Defense Strategy which makes no mention of the southern border as a national defense priority. Despite this argument, several scholars feel that President Trump’s deployment of troops to the southern border in October 2018 may have been sufficient to lay the groundwork for the involvement of the U.S. military.

Challenging the Declaration

After Congress revised the National Emergencies Act, it became considerably harder to override presidential power with respect to emergency declarations. Following the revision, termination of an emergency declaration requires a joint resolution signed by the president. Should the president refuse to sign, then a two–thirds majority vote in each chamber would be required to override the president’s veto. However, according to Elizabeth Goitein, “during the 40 years the law has been in place, Congress has not met even once. . . to vote on whether to end [an emergency declaration].”

In addition to any congressional challenge President Trump may face, an emergency declaration would almost certainly result in various legal challenges. After rigorous discussion among legal scholars, it remains unclear how such a challenge would play out in the court system. However, most agree that the questions at hand would ultimately focus on whether the emergency at the border actually exists and the limitations of presidential power.

Conclusion

Legal scholars across the world are grappling to determine what will likely happen in the coming weeks as uncertainty remains as to whether President Trump actually possesses the power to build the border wall through the declaration of a national emergency. As such, should Trump proceed with his plans, congressional and legal action will likely follow which could very well spill over into the 2020 election.


Sources

10 U.S.C. § 2808(a) (2012).

50 U.S.C. §§ 1601–1651 (2012).

Josh Dawsey & David Nakamura, “I can do it if I want”: Trump threatens to invoke emergency powers to build border wall, Washington Post (Jan. 4, 2019).

Eli Watkins, Manu Raju & Elizabeth Landers, Trump: “May declare a national emergency” to build wall, CNN (Jan. 7, 2019, 9:44 AM).

Jim Acosta & Betsy Klein, Pence says White House looking into Trump’s ability to declare border emergency, CNN (Jan. 7, 2019, 10:18 PM).

Trump Addresses Nation on Immigration, New York Times (Jan. 9, 2019).

Reed Opposes Trump Administration’s Plan to Declare National Emergency & Use Defense Dollars to Pay for Wall, Jack Reed (Jan. 4, 2019).

Grace Segers, A Trump national emergency declaration could face challenges, CBS News (Jan. 10, 2019).

Elizabeth Goitein, What the President Could Do If He Declares a State of Emergency, Brennan Center for Justice (Dec. 12, 2018).

Photo courtesy of BBC.

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