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Can Trump Declare a National Emergency to Build the Wall?

A Q&A with the Brennan Center’s Liza Goitein, a leading expert on emergency powers.

  • Brennan Center for Justice
January 11, 2019

(This page was updated Janu­ary 31, 2019.)

The federal govern­ment has been partially shut down since Decem­ber 22 amid Pres­id­ent Donald Trump’s demands for more than $5 billion in fund­ing to build a wall on the U.S.-Mexico border. As the shut­down contin­ues, Trump has said he’s likely to declare a national emer­gency in order to get the funds needed for the wall without the approval of Congress.

Eliza­beth Goitein, who co-directs the Bren­nan Center’s Liberty & National Secur­ity Program, authored an extens­ive report for The Atlantic, published in Decem­ber, that outlined the full array of powers that become avail­able to the pres­id­ent if he declares a national emer­gency, and showed how ripe they are for abuse.  

Goitein spoke with Bren­nan Center staff writer Tim Lau about whether Trump can declare an emer­gency in order to fund the border wall — and how Congress should review and reform the current system for emer­gency powers.

Pres­id­ent Trump is think­ing about declar­ing a national emer­gency to secure money to build the border wall. But is that some­thing he can actu­ally do?

So that’s actu­ally two differ­ent ques­tions. The first ques­tion is, can Pres­id­ent Trump declare a national emer­gency when there’s no actual emer­gency? The second ques­tion is, does that mean he can build the wall? It’s import­ant to separ­ate those two ques­tions.
In terms of whether he can concoct and declare a national emer­gency, it’s certainly an abuse of power, and partic­u­larly in this instance. Not only is there no emer­gency, it’s anything but an emer­gency. It’s really busi­ness as usual, except maybe a bit better in terms of the levels of illegal border cross­ing. 
Now, when Congress passed the National Emer­gency Act in 1976, it chose not to define “national emer­gency” and not to create any criteria or require­ments that had to be met. For that reason, even in a situ­ation where it’s clear to you and me and to most reas­on­able people that there is no emer­gency, many judges would ordin­ar­ily be reluct­ant to over­turn the pres­id­ent’s assess­ment.
But Pres­id­ent Trump has really under­mined his own legal case with his state­ments and his beha­vior. He keeps saying that he wants to give Congress more time, and that he’ll only declare an emer­gency if Congress does­n’t give him fund­ing. But emer­gency powers are supposed to give the pres­id­ent more flex­ib­il­ity in cases where Congress does­n’t have time to act. And they were never inten­ded to be used to get around the will of Congress. When the pres­id­ent invents an emer­gency in order to fund a project that Congress has very expli­citly declined to fund, that’s an effort to under­mine the consti­tu­tional alloc­a­tion of powers. 

What’s the rationale behind giving the pres­id­ent emer­gency powers?

Emer­gency powers are based on a sound idea: that ordin­ary laws might not be suffi­cient in a true crisis to deal with whatever that situ­ation is. That’s because emer­gen­cies are, by their nature, unpre­dict­able, and so Congress might not have thought of the right author­it­ies that the pres­id­ent would need during the emer­gency.

There­fore, the pres­id­ent might need some more flex­ib­il­ity tempor­ar­ily, either until the emer­gency passes or until Congress has time to act and to provide the author­it­ies the pres­id­ent needs. Emer­gency powers are meant to fill that gap, to give the pres­id­ent that addi­tional flex­ib­il­ity for a tempor­ary period of time.

But what’s the histor­ical context? How did these emer­gency powers come to be, and why did Congress leave “emer­gen­cies” undefined?

Congress passed the National Emer­gen­cies Act in 1976 as a way to try increase congres­sional over­sight and super­vi­sion over pres­id­en­tial declar­a­tions of emer­gency. Pres­id­ents were declar­ing emer­gen­cies already. That did give them access to powers in laws that Congress had passed. But the whole thing was happen­ing outside the view of Congress and without a lot of trans­par­ency in terms of what powers the pres­id­ent was using, and without Congress really having any role or any say.

The National Emer­gen­cies Act was designed to increase checks on the pres­id­ent’s use of emer­gency powers. But all of those checks were after the fact. The pres­id­ent declares an emer­gency and is really free to do so. But at that point, he has to specify in his emer­gency declar­a­tion which provi­sions he plans to rely on. So there’s some trans­par­ency there. He also has to report to Congress every six months on expendit­ures during the emer­gency, which provides for some addi­tional trans­par­ency and account­ab­il­ity.

The emer­gency expires after a year unless the pres­id­ent renews it. That was supposed to keep emer­gen­cies from drag­ging on forever. It really hasn’t worked at all because Congress made it very easy to renew the emer­gency. It’s as easy as issu­ing the declar­a­tion in the first place. The pres­id­ent just has to sign a piece of paper. That one didn’t work out so well.

Then — and this is prob­ably the biggest check that Congress put into the law — Congress is supposed to meet every six months while an emer­gency is in effect to consider a vote on whether to termin­ate the state of emer­gency. It’s been 40 years, and during each of those years, there’s been at least one state of emer­gency in effect. So in theory, Congress should have met and voted 80 times, but Congress has not done that once. That part of the law is really just a dead letter. Congress has abdic­ated that respons­ib­il­ity.

What are the most tangible steps Congress can take in the near future to make sure these powers are used to protect us, and not put us at risk?

Congress should be revis­it­ing the National Emer­gen­cies Act to make sure the pres­id­ent does­n’t have a blank check to declare a national emer­gency in the first instance — but also to give Congress a less pass­ive role in ending states of emer­gency that are going on too long. So rather than require Congress to muster a veto-proof super­ma­jor­ity to end the state of emer­gency, we should consider doing some­thing like many other coun­tries do.

Many other demo­cra­cies have systems where the head of state declares a state of emer­gency, but it’s strictly time-limited, and after that, any renewal of the state of emer­gency has to be by the legis­lature. And I think that’s a sens­ible way to elim­in­ate the perverse incent­ives that exist when the govern­ment actor who declares the state of emer­gency is the one who’s getting all the powers.

(Image: stellalevi/Getty)