Just the Facts

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

By Emma Petasis
January 11, 2019 | Blog

President Trump has announced that he is seriously considering declaring a national emergency to fund one of his key campaign promises, a wall along the U.S.-Mexico border. The president’s announcement has ignited a firestorm surrounding his authority to do so and the implications that such a decision could have. Here are five facts on President Trump’s plan to declare a national emergency.

The National Emergencies Act (NEA) of 1976 gives the president the authority to expand his 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 national emergencies 58 times – 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 issues ranging from the 9/11 terrorist attacks to Colombian drug traffickers to Chinese cyber-attacks. Many of these declarations still remain in effect, as the president has the authority to either 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.

Last week, President Trump announced that he was considering declaring a national emergency to secure funds for a wall along the U.S.’ southern border.

For the past three weeks, large portions of the federal government have been shut down over funding for the border wall, one of President Trump’s key campaign promises. With negotiations between the White House and congressional Democrats at a standstill, President Trump announced he was considering using the NEA to allocate funds for the border wall, allowing him to bypass Congress. Over the past week, the president has continued to play with the idea, most recently stating “If [a deal with Congress] doesn’t work out, probably I will do it. I would almost say definitely.”

If the president were to declare a national emergency, the funds would be diverted from the Department of Defense.

In anticipation of the possible announcement, the White House has reportedly asked Pentagon officials to provide lists of unspent funds that could be diverted to pay for the border wall. One of the primary options currently being considered would divert money allocated to disaster relief projects in places such as Puerto Rico, Texas, California, and Florida, which have been damaged by natural disasters such as hurricanes and wildfires. Another option is to direct the Department of Homeland Security to request the funds from the Department of Defense; however, this could divert money that the Defense Department has set aside for military readiness.

Lawmakers on both sides of the aisle have largely expressed opposition to the president’s plan.

President Trump has faced a considerable amount of pushback from Capitol Hill over his plan to declare a national emergency. Not only has he been criticized harshly by congressional Democrats, he has also faced criticism from members of his own party. President Pro Tempore of the Senate, Republican Chuck Grassley, recently stated “I think the president should not do it … I think it might be a bad precedent.” In addition, several moderate Republican senators,  such as Lisa Murkowski (AK) and Cory Gardner (CO), have also expressed concern, with Murkowski stating, “I don’t think that’s the way we should go.”  However, the president has received some support for his plan from senators such as Judiciary Chairman Lindsey Graham (SC), who said: “It is time for President Trump to use emergency powers to fund the construction of a border wall/barrier.”

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