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Analysis

Trump Declares National Emergency to Build Border Wall

The president’s declaration is an abuse of power.

  • Brennan Center for Justice
February 15, 2019

In a White House Rose Garden announcement on Friday morning, President Trump declared a national emergency in order to get the funds to build a border wall.

“The president’s declaration is a grotesque abuse of power,” said Elizabeth Goitein, co-director of the Brennan Center’s Liberty & National Security Program. “Emergency powers are for emergencies, not for circumventing the will of Congress on questions of policy.”

Trump’s emergency declaration will likely lead to clashes — both in Congress and in the courts. However, it is unclear whether legal challenges to the declaration would succeed. When Congress passed the National Emergency Act in 1976, it chose not to define the phrase “national emergency,” nor to create specific criteria for a designation. That ambiguity may make judges hesitant to overturn the president’s declaration.

Today’s announcement also highlights the space for potential reform of the legal system for national emergencies. Currently, ending an emergency declaration requires Congress to muster a veto-proof supermajority. But there are alternative systems — for example, in many other democracies, the head of state declares a state of emergency, but the declaration is strictly time-limited, and only the legislature can renew it.

“Congress should amend the National Emergencies Act to bolster checks and balances now, before Trump declares the next fake emergency to get around the democratic process," said Goitein. “Regardless of the outcome, Congress should learn its lesson: gifting presidents with limitless discretion and hoping they won’t abuse it is taking dangerous risks with our democracy.”

Read the Brennan Center's press release here.

(BCJ/Pool/Getty)