Should The President Have Declared A National Emergency?

Uncle Sam and Trump arguing about the national emergency. (Credit: danbyink.bangordailynews.com)

On February 15th, 2019 President Donald J. Trump declared a national emergency at the southern border so he could get the money he needed to build a wall. After a 35-day partial government shutdown, Trump was trying to force the hand of Congress, mostly Democrats, to fund his border wall.

The declaration has been challenged in courts by the ACLU, landowners, and a coalition of 16 states (including New York). Congress gave the President the power to declare a national emergency from the National Emergency Act of 1976.

According to ABC News, a national emergency would give the President access to 3.5 billion dollars from the military construction budget. The legal challenge from 16 states say that the President doesn’t have the authority to use these funds because Congress has the power of the purse.

This argument will be hard to win because the National Emergency Act doesn’t give much detail on what it’s about, so it will be hard to prove that the President doesn’t have this power.

The landowners argue that the Trump administration doesn’t have the power to eminent domain their property because Congress did not approve the funds. Eminent domain is when the government takes someone’s property for public use and must provide just compensation for the owners.

This is a more compelling argument because eminent domain from the federal government needs congressional approval – and Trump is using a national emergency to go around Congress.

The ACLU uses both arguments to say that Trump doesn’t have the power to declare a national emergency and overcome Congress. They also say that the administration can’t take the private property of citizens to build the wall.

The court cases could take months or even years to settle while Trump will use the 1.347 billion dollars that Congress approved. Trump will also use another 600 million dollars from the Treasury Department’s drug forfeiture and 2.5 billion dollars from the Pentagon’s drug interdiction program.

The total amount of money that Trump will use for the wall is 4.475 billion dollars which is still lower than the 5.7 billion dollars he wanted from Congress during the shutdown.

Other aspects of the national emergency are the political effects. Republicans in the Senate urged Trump not to declare a national emergency because it is seen as an executive overreach.

The most important reason the Republicans didn’t want the national emergency is because if the courts upheld the declaration, when a Democrat eventually becomes President they could use a national emergency for climate change, gun control, or healthcare purposes. Trump didn’t listen to them mostly because his 2016 campaign was built on his promise to “build the wall.”

Most Republicans eventually lined up behind the President like Mitch McConnell, the Senate Majority Leader, who at first urged Trump not to declare a national emergency. Congress can block the emergency declaration, which is what the House of Representatives moved to do on February 26th.

The measure passed the House with a margin of 245-182; 13 Republicans voted for it.

The resolution will go to the Senate where it has a chance of passing because three Republicans said they will vote with Democrats and several other Republicans are undecided. Even if the resolution passes the Senate, the President can veto the resolution.

Trump states that he will veto if the resolution reaches his desk. It’s unlikely that there will be enough votes in both chambers to overturn the veto.

The national emergency has created both legal and political challenges for Trump and it doesn’t look like the issue will be resolved anytime soon.