A huge thank you to Howard Fenton, Professor of Law Emeritus at Ohio Northern University, for writing the briefing below for AHEAD.

Border Walls and National Emergencies
Howard Fenton, Professor of Law Emeritus

Last week President Trump invoked powers under the National Emergencies Act of 1976 to re-program appropriated Defense Department funds to build his wall along the U.S. Mexico border. Since the enactment of the law every president has declared emergencies, totaling almost 60, with half still in place (Obama declared 12 and G.W. Bush 13). What is different about Trump’s border wall emergency is that he is trying to use funds for a purpose that Congress has specifically refused to approve. This sets up a potential constitutional crisis between Congress’ control over budget and appropriations and the President’s desires.

The National Emergencies Act sets out procedures for the president to follow in invoking emergency powers granted under several different statutes. In this case, the law in question provides that if the emergency is one “that requires use of the armed forces” the president can take appropriated construction funds for one military purpose and reprogram them for the emergency purpose. This provision has only been invoked twice before, during the first Gulf War and following 9/11. Thus, there is a legal question as to whether this “emergency” meets the statutory test. This and the constitutionality of his actions will be the focus of the multiple lawsuits that have already been filed, including one action by fifteen states.

When Congress passed the NEA is sought to provide some restraint on the emergency power granted to the President. Originally it provided that the Congress could invalidate the declaration by passing a joint resolution. This was struck down by the Supreme Court (INS v. Chadha, the legislative veto case) and the law was amended to provide that both houses would have to pass the resolution and the President would have to sign or veto it. Trump has indicted that he would veto any such resolution. With a 2/3 vote by both houses, Congress could override the veto, but this is unlikely with the current Congress. What then is the value of the Congress passing this disapproval resolution?

The law provides an expedited procedure for consideration of the resolution, one that cannot be delayed or avoided. Thus, Senator McConnell will have to bring the resolution to the floor and the Senators will have to vote on it. McConnell has skillfully protected the Republican Senators from having to vote against the President but this time there is no option. Many Senators, as well as the Vice President, are strongly on the record against use of presidential emergency powers by President Obama. While passage of the Congressional resolution will not end Trump’s border wall emergency, it will certainly demonstrate which Republicans have principled concerns about separation of powers and the appropriate roles of Congress and the Presidency or which are simply partisan shills fearful of Trump and his base voters.