Commentary & Community

On Friday, February 15, President Donald Trump announced that he would declare a state of emergency to allow him to use federal funds to build a border wall. Talk about this “emergency” is common in the media, but this declaration involved a legal process that gives powers to both the president and Congress. This explainer will give you more information about the law in question, what it allows the president to do, and how Congress can react.

The issue of a wall on the U.S.-Mexican border has been one that President Trump has been supporting since he ran for president, but Congress has not allocated funding to do this. President Trump used a 1976 law to bypass Congress, but the law does not give him unlimited power to do whatever he wants. By invoking this law, the president also gives Congress an opportunity to take action to terminate his declaration.

The National Emergencies Act of 1976

President Trump is using authority under a law passed in 1976, the National Emergencies Act, also known as Public Law 94-412.

Presidential Power

This legislation gives the president broad powers in an emergency, but also puts some limits on those powers:

Where Congress has enacted legislation to delegate emergency powers to the president, he can invoke this law use those powers through a declaration.

The president must specify the law under which he is acting.

The president must renew emergency declarations annually and can terminate them at any time.

Congressional Power

This legislation also gives Congress a role to play in national emergencies:

Within 6 months, and every 6 months thereafter, Congress must meet to consider a resolution to determine if a national emergency should be terminated.

A concurrent resolution by Congress can terminate an emergency. This resolution is subject to the president’s veto, so it must pass by a two-thirds majority to ensure that it will overrule the president’s actions.

Every six-month time period in which an emergency is in effect, the president must provide a list of expenditures to Congress that have been incurred due to this emergency declaration.

History of Use

Since this law has been in effect, there have been 59 emergencies declared. Thirty-one of them have been annually renewed. These include emergency declarations regarding the September 11 terrorist attacks and sanctions on various foreign regimes that support terrorism.

President Trump’s Emergency Declaration

Under President Trump’s emergency declaration, various federal sources of money can be used to pay for the construction of a border wall. These include:

$3.6 million from uncompleted military construction projects

$2.5 billion from Department of Defense anti-drug efforts

$601 million from funds in the Department of Treasury from assets seized and forfeited to the federal government

Legal Issues

Besides the congressional resolution of disapproval, there will also be challenges in the courts to this declaration. Opponents of the declaration are likely to argue these points in court:

There is no true emergency. According to this argument, there is nothing new happening at the border that justifies declaring the situation an emergency. The president, they say, is simply calling this an “emergency” in order to bypass Congress.

Congress has refused to act, so the president should not have the presumption of authority in this case. Unlike in past emergencies, this declaration comes after Congress has explicitly refused to grant funding for the purposes of the declaration. Past emergency declarations did not involve spending money in ways that have been denied by Congress, so those who make this argument contend that President Trump is on much weaker ground in justifying his declaration.

The Supreme Court’s decisions do not provide much precedent in this area. In Youngstown Sheet & Tube Co. v. Sawyer, the court held that President Truman’s could not declare an emergency to seize private property. The court decided this case in 1952, however, and has not adjudicated any case under the 1976 law.

What This Means for You

The House of Representatives voted 245-182 on February 26 to terminate President Trump’s national emergency. The Senate will now take up this question. With a handful of Republicans already announcing their support for the resolution, this body is likely to vote in favor of terminating the emergency, too. With a majority of both houses in favor, this would be the first time that Congress voted to revoke an emergency declaration by the president.

President Trump still has the option of vetoing this resolution, however, and he is likely to do so. The votes in favor of the disapproval resolution did not reach two-thirds of either chamber of Congress, so any veto override attempt is almost certainly doomed. That leaves the fight over the fate of President Trump’s emergency declaration with the courts. Sixteen states’ attorneys’ general have filed suit to stop it. This could take years to resolve. A border wall, if it gets built at all, is unlikely to be finished any time soon.