President George W. Bush flexed the National Emergencies Act in the days after the 2001 terrorist attacks, President Jimmy Carter used it during the Iranian hostage crisis, and President Barack Obama tapped it to handle the swine flu pandemic in 2009.
Now it’s President Trump who is eyeing the 1976 law, figuring it could be his ticket out of the shutdown showdown, allowing him to build his promised border wall without needing to get Congress to specifically approve the money.
The White House said no decision had been made in the run-up to Mr. Trump’s Tuesday night speech on border security, but the president was clearly eyeing the powers as a viable escape route.
Congressional Democrats and liberal activists warned of a constitutional crisis and promised they would fight any emergency declaration in the courts and in the halls of Capitol Hill.
“At the end of the day, the law allows him to declare what a national emergency is,” said William Cowden, a former assistant U.S. attorney in Washington, D.C. “Whether the wall eventually gets built or not, it gives him an out to go back in and reopen government.”
Even the Democratic chairman of the House Armed Services Committee said over the weekend that the law appears to give the president emergency powers.
The National Emergencies Act emerged after Watergate and was meant to be a restraint on the runaway powers of the presidency, codifying and limiting what had been an expansive number of declarations of emergency presidential action.
The law requires the president to make the case for the emergency, and it gives Congress a means of trying to overturn his decisions by passing a resolution of disapproval.
In the border wall case, Mr. Trump’s goal is to get the military involved, tapping unspent Pentagon funding to redirect toward wall construction.
The Defense Department said last month that it has studied the issue and concluded it has the legal authority to build a border fence, particularly if it were deemed critical to an anti-drug smuggling mission.
And the Congressional Research Service has identified tens of millions of dollars over the last two decades that the Pentagon spent on wall construction as part of drug interdiction accounts.
Trump critics say he could be snared by semantics.
The law allows construction of roads and fences — while the president, until recently, had insisted he was building a wall. He has since changed his rhetoric, but judges may not be sympathetic.
Congressional Democrats also said Mr. Trump would struggle to prove the border situation is enough of an emergency to justify his use of the military.
“There is no invasion. There is no clear and present danger, as the president would try to convey to the American people, to scare them and to justify actions otherwise not justified,” said House Majority Leader Steny H. Hoyer of Maryland.
Democrats say border arrests of illegal immigrants are down dramatically from two decades ago, though they have surged again this year, with families and children now constituting an overwhelming number of those testing the border.
Mr. Trump also points to drugs, gang members and potential terrorists coming across the border as reasons for his wall.
He has said repeatedly he views the situation as an emergency.
Mr. Hoyer, though, said declaring an emergency would be similar to a dictator declaring martial law.
He said a lawsuit “is possible,” but was waiting to see what the president decides to do.
One hurdle for Mr. Trump would be which Pentagon programs would be shortchanged to shift money to wall-building.
Making those decisions could cost him the support of Republicans.
“There’s not enough money in DOD the way it is, so anything along that line will have to be justified and like I say, we’ve worked very, very hard, the president’s worked hard to get the appropriate number of dollars into the Department of Defense,” said Sen. Mike Rounds, South Dakota Republican.
He predicted Mr. Trump would have to survive a legal battle.
Mr. Cowden said the initial outcome of that fight would depend on which judges get the case, but he expects the courts eventually would back Mr. Trump.
“I think what they’re likely to do is say the president has this authority to declare a national emergency. If Congress doesn’t like it there’s a mechanism in there for Congress to override it,” he said.
The override mechanism is built into the law in a 1980s update that created a process for both the House and Senate to pass a resolution disapproving of an emergency declaration.
House Democrats, who control the lower chamber, are likely to muster the votes — but they have a tougher path in the Senate, where the GOP has a majority.
And the president can veto any measure they pass, meaning it would take a two-thirds vote of both chambers to stop him.
Perhaps a bigger threat to Mr. Trump’s emergency powers is land ownership. Even a national emergency can’t surmount private property rights, and much of the land where fencing would be built in Texas is owned by citizens.
Trying to use eminent domain powers would invite a flurry of litigation that could derail construction for years. Lawsuits are still pending over construction dating back to the last major barrier-building spree in the Secure Fence Act of 2006.
“If he attempts to seize personal land in violation of the Constitution, Trump will need to do so in Texas — a state not known for its fondness for federal government overreach,” the Center for American Progress said in a memo this week.
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