In the middle of February, President Trump announced a national emergency in relation to border wall funding that is causing an analysis of the Constitution our founding fathers wrote. The figure includes about $1.3 billion in the spending bill for fencing in Texas — $2.5 billion from Defense Department drug banning program, $600 million from the Treasury Department’s drug forfeiture fund and $3.5 billion from a military construction budget under executive order by the president.
Trump said he will sign the government funding bill but will also take executive action (herein the case of “national emergency”) in order to “ensure we stop the national security and humanitarian crisis at the border,” according to White House Press Secretary Sarah Sanders on February 14. In declaring a national emergency, Trump plans to use funding from several parts of the Federal government (mostly the Defense Department) to extend the southern border wall mileage.
This immediately brought an uproar from the Democrats and Republicans, thus initiating a closer look at what the Constitution declares the role of the executive branch in appropriating funds in the case of a national emergency.
Looking back at history, we see several instances in which the Executive declared a national emergency. Abraham Lincoln used his authority to declare a national emergency at the time of the Civil War, Franklin D. Roosevelt declared national emergency in 1941 against the Nazis, George W. Bush decreed one in 2001 after terrorist attacks and even Barack Obama declared a national emergency in 2009 during the swine flu outbreak. Presidential national emergencies are nothing new in the American political sphere but are still up to debate as to what justifies such a declaration.
Gerald Ford signed the National Emergencies Act of 1976 to formalize the emergency powers of the president. According to this act, the executive branch can declare a national emergency, but the president must cite the specific emergency powers he is activating. In Section 2808 of the federal code’s regulation of the armed forces, Congress enables the president to push forth military construction projects that are not authorized by law. The president may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise and even restrict travel.
Essentially, President Trump’s declaration of a national emergency is not unconstitutional, as the NEA of 1976 has been passed into federal law and been upheld for decades.
Congress is able to check the executive branch and overrule the president’s use of the act by passing a joint resolution out of the House and Senate. The Constitution makes definite the checks and balances between each branch of federal government, but that does not stop each branch from gaining an advantage over the other. In this scenario, this is a testing of executive authority and whether it complies with the NEA. Of course, a declaration of national emergency to move funds will likely face legal challenges mainly pertaining to the precedent that will be set.
House Speaker Nancy Pelosi (D-CA) expressed her disapproval at Trump’s declaration, saying that “[d]eclaring a national emergency would be a lawless act, a gross abuse of the power of the presidency.”
On March 4, Rand Paul (R-KY) explained his reasoning for voting against the president’s executive declaration by saying, “I can’t vote to give the president the power to spend money that hasn’t been appropriated by congress … I think he’s wrong, not on policy, but in seeking to expand the powers of the presidency beyond their constitutional limits.”
The constitutionality of Trump’s declaration is upheld under the National Emergencies Act of 1976, but the debate as to whether this is an egregious overreach of executive authority or a national emergency that needs to be addressed remains unseen.