Just the Facts

Five Facts on President Trump’s Decision to Declare a National Emergency

By Emma Petasis
February 15, 2019 | Blog

On Friday, President Trump declared a national emergency to secure additional funds for a wall along the southern border. Here are five facts on President Trump’s decision to declare a national emergency.

The National Emergencies Act (NEA) of 1976 gives the president the authority to expand his or her executive power by declaring a national emergency.

The NEA was originally intended to enhance the president’s executive authority in order to allow him or her to respond quickly in the event of a crisis. While the NEA does not provide any specific authority on its own, it allows the president to quickly activate expanded executive authorities that are stipulated in other federal statutes. The expanded authorities which the president wishes to enact and the justification for their enactment must be identified and immediately transmitted to Congress.

Since the passage of the NEA, presidents have declared a national emergency 58 times and 31 are still active.

In 1979, President Jimmy Carter became the first president to declare an emergency under the NEA, using the law to block Iranian government property from entering the country as part of his administration’s response to the Iranian hostage crisis. Over the past several decades, various presidents have used the NEA to respond to the 9/11 terrorist attacks, Colombian drug traffickers, Chinese cyberattacks and more. Many of these declarations still remain in effect, as the president has the authority to renew the declaration, sign an executive order terminating it, or simply allow the declaration to lapse. On average, declarations of a national emergency last about 13 years.  

On Thursday, President Trump announced that he would declare a national emergency at the southern border to secure funds for a border wall.

Following months of speculation, President Trump made the decision to declare a national emergency after Congress passed a bipartisan spending bill that fell far short of allocating the president’s requested $5.7 billion for a wall.  The declaration allows President Trump to divert previously budgeted federal dollars to building a wall, including $3.6 billion budgeted for military construction projects, $2.5 billion for counter-narcotics programs, and $600 million from a Treasury Department asset forfeiture fund. When combined with the $1.375 billion authorized by Congress on Thursday, President Trump will have approximately $8 billion to put toward one of his signature campaign promises.    

The national emergency declaration will likely be tied up in Congress and the court system for years.

President Trump’s declaration is likely to be immediately challenged by lawmakers and activists.  Stephen Vladeck, a University of Texas-Austin law professor who teaches national security law told USA Today that, “everyone’s going to come out of the woodwork… I think we’re going to see an array of lawsuits that actually would all have to be dealt with separately.” Rep. Alexandria Ocasio-Cortez (D-NY) and Rep. Joaquin Castro (D-TX) have already announced a plan to introduce a bill to stop the emergency declaration. Prominent organizations such as the ACLU and Protect Democracy have expressed strong opposition and indicated they would challenge the president’s declaration in court. According to Walter Dellinger, an assistant attorney general and head of the Office of Legal Counsel under President Bill Clinton, “In the normal course, we might not expect a decision until June of 2020 at the earliest.” 

Lawmakers on both sides of the aisle have expressed serious concern about the declaration.

President Trump has faced considerable pushback from Capitol Hill over his plan to declare a national emergency. In a statement, Sen. Patrick Leahy (D-VT), the top Democrat on the Senate Appropriations Committee, said “the President’s inartful failure to get a deal does not justify him manufacturing a false national emergency.” President Trump is also facing criticism from members of his own party. Sen. Susan Collins (R-ME)released a statement saying, “Declaring a national emergency for this purpose would be a mistake on the part of the President…Such a declaration would undermine the role of Congress.” However, other prominent Republicans, including Senate Judiciary Chairman Lindsey Graham (R-SC) tweeted, “I stand firmly behind President Trump’s decision to use executive powers to build the wall-barriers we desperately need.”

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