Trump’s National Emergency Powers and Border Wall, Explained
(The New York Times | Jan. 7, 2018) As the budget standoff between President Trump and congressional Democrats grinds into the third week of a partial government shutdown, the White House has floated the idea that Mr. Trump might invoke emergency powers to build his proposed wall on the Mexican border without lawmakers’ approval.
That route could resolve the immediate crisis by giving Mr. Trump a face-saving way to sign spending bills that do not include funding for his wall. But it would be an extraordinarily aggressive move — at a minimum, a violation of constitutional norms — that would most likely thrust the wall’s fate into the courts. Here is a primer on whether Mr. Trump can use emergency powers to proceed with the project without explicit congressional permission.
What are emergency powers?
The president has the authority to declare a national emergency, which activates enhancements to his executive powers by essentially creating exceptions to rules that normally constrain him. The idea is to enable the government to respond quickly to a crisis.
Although presidents have sometimes claimed that the Constitution gives them inherent powers to act beyond ordinary legal limits in an exigency, those claims tend to fare poorly when challenged in court.
But presidents are on firmer legal ground when they invoke statutes in which Congress delegated authorities to the executive branch that can be generated in emergencies. In a recent study, the Brennan Center for Justice at New York University School of Law identified 123 provisions of law granting presidents a range of such powers.
The National Emergencies Act, enacted during the post-Watergate reform era, regulates how presidents may invoke such powers. It requires them to formally declare a national emergency and tell Congress which statutes are being activated …
… In light of those statutes and similar ones that give presidents flexibility to redirect funds in a crisis, the Trump administration could point to serious arguments to back up Mr. Trump if he invokes emergency powers to build a wall, said William C. Banks, a Syracuse University law professor who helped write a 1994 book about tensions between the executive and legislative branches over security and spending, “National Security Law and the Power of the Purse.”
“The fundamental principle is that no president or official may spend funds that were not appropriated for that purpose,” he said. “But I think that it’s possible that the president could declare a national emergency and then rely on authority Congress has historically granted for exigencies to free up some funds to support constructing a barrier along the border” …