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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
Andrew Harrer-Pool/BCJ/Getty
Andrew Harrer-Pool/BCJ/Getty

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.

(Pool/Getty/BCJ)