Trump will declare a national emergency to build his border wall. Here’s what could happen next.

Associated Press/Jacquelyn Martin

President Donald Trump will declare a national emergency to secure enough funds to build his long-promised border wall, the White House announced Thursday.
The news comes as Trump prepares to sign a spending bill that a bipartisan group of lawmakers created, which isn’t giving Trump the full $5.7 billion in wall funds he requested.
A national emergency means Trump would instantly gain a slew of special powers he could use to get the funds he needs.
Such an action will almost certainly trigger challenges from Congress and the courts, but it’s unclear how the battles will play out.

President Donald Trump will declare a national emergency to bypass Congress to secure enough funds to build his border wall, The White House announced Thursday afternoon.

Trump will also sign a spending bill written by a bipartisan group of lawmakers that granted him just a fraction of the $5.7 billion he had demanded for the wall. The bill will instead allocate just $1.375 billion to border fencing, and it stipulates that the fencing use existing designs and not include concrete or any of Trump’s wall prototypes.

"President Trump will sign the government funding bill, and as he has stated before, he will also take other executive action — including a national emergency — to ensure we stop the national security and humanitarian crisis at the border," press secretary Sarah Huckabee Sanders said in a statement. "The President is once again delivering on his promise to build the wall, protect the border, and secure our great country."

Trump and his staff have been threatening for months to declare a national emergency if Congress refused to grant him the full $5.7 billion. Now, barely three weeks after a record 35-day partial government shutdown, Trump is averting a second shutdown by accepting Congress’ deal that fails to provide the full funding, but using his executive powers to secure the remaining sum.

Trump has spent much of the last three months raging about a "crisis" he said has erupted at the US-Mexico border, propelled by of illegal immigration, drugs, and violent crime, which must be solved by constructing a physical barrier.

Critics, meanwhile, have argued that there is no crisis — or at least none that a wall can solve. Border apprehensions are at their lowest point in decades, drugs mainly enter the US through legal ports of entry, and studies show that unauthorized immigrants commit fewer crimes than native-born Americans.

Here’s what you need to know about a national emergency declaration.

What is a ‘national emergency’?

Kevin Lamarque/Reuters

A national emergency is something that the president declares to grant him special powers under the National Emergencies Act of 1976. Trump is hoping to use those special powers to allocate funding for the border wall.

There are 136 statutes governing which special powers the president can use, according to The Brennan Center for Justice, and it’s unclear at this point which ones the Trump administration has in mind.

It’s not uncommon for presidents to declare national emergencies. One of the most well-known examples is the national emergency that former President George W. Bush declared after 9/11, which is still in effect and has been renewed by the sitting president each year.

Can Trump do this?

Experts are divided over whether it’s legal for Trump to use a national-emergency declaration for a wall.

But he faces relatively few restrictions on declaring a national emergency. According to The Brennan Center, 96 of the 136 statutory authorities available to presidents during national emergencies need only their signature, and just 13 require Congress to also declare an emergency.

Twelve of the authorities have a small restriction, such as requiring agency officials to certify that the measures are necessary, and the remaining 15 authorities require that the emergencies relate to particular subjects.

Yale Law School professor Bruce Ackerman wrote in a New York Times op-ed that there’s no way Trump could use emergency powers to build the wall — at least if he opts to use funds from the military budget and use military personnel to build it.

Though there is some precedent for presidents’ use of the military to enforce domestic law — primarily former President George W. Bush’s authorization of the military to respond to Hurricane Katrina — that exception has since been repealed.

Reuters

"Is President Trump aware of this express repudiation of the power which he is threatening to invoke?" Ackerman wrote.

Yet other experts said it might be easier for Trump to use national-emergency powers than most think. Elizabeth Goitein of The Brennan Center wrote in The Atlantic that some of those 136 provisions available to Trump under the National Emergencies Act of 1976 appear "dangerously suited to a leader bent on amassing or retaining power."

"We are in uncharted political territory," Goitein wrote.

How would the Trump administration use these special powers?

News reports have indicated that the Trump administration reviewed several options for how to best use emergency powers to secure the wall funding.

The White House has reportedly already asked the Army Corps of Engineers to review whether unused funds can be diverted from certain civil-works projects in order to pay for the wall. NBC News reported that one of these projects could include reconstruction in Puerto Rico, which experienced heavy damage from Hurricane Maria in 2017.

The Trump administration reportedly also examined whether the Department of Homeland Security can request the funds from the Pentagon — an idea that former Defense Secretary Jim Mattis backed before his resignation in December, according to The Wall Street Journal.

Associated Press/Pablo Martinez Monsivais

What could happen next?

Once Trump declares a national emergency, it’s widely expected that he’ll face major battles on two fronts: Congress and the courts.

Lawmakers from both parties have already expressed dismay over Trump’s potential use of emergency powers. Some Republicans fear it sets a precedent that could later be used by a Democratic president to pursue liberal policies, while Democrats have called it a misuse of executive power.

House Democrats even introduced legislation in the House in early January to preemptively block Trump from invoking a national emergency. Senate Democrats also introduced their own bill in early February to bar any funds from being transferred from the US Army Corps of Engineers or military construction accounts to the border wall.

But a legislative challenge to Trump’s national-emergency powers could also hit roadblocks, thanks to a 1983 Supreme Court case that blocked Congress from using simple-majority votes to overrule a president’s emergency declaration.

The National Emergencies Act of 1976 was then amended to require that both arms of Congress pass two-thirds-majority votes to override a presidential veto.

Chip Somodevilla/Getty Images

Since some Republican lawmakers, such as South Carolina Sen. Lindsey Graham, have already expressed support for Trump’s use of a national emergency to build the wall, it may be unlikely that Congress puts up an effective fight.

"If White House and Congress fail to reach a deal then President [Trump] must act through emergency powers to build wall/barrier," Graham tweeted on January 28.

But Trump is certain to also face multiple legal challenges, which could meet an unpredictable fate. The Supreme Court has been reluctant to question some of Trump’s executive powers — even deferring to him on the controversial travel ban he implemented.

Though plaintiffs in any lawsuits against Trump will likely try to question his administration’s assertion that a national-security "crisis" is occurring along the southern border, the Supreme Court justices may well defer to his judgment on the issue, as they did with the travel ban.

"If any court would actually let itself review whether this is a national emergency, he would be in big trouble," Goitein told The Times. "I think it would be an abuse of power to declare an emergency where none exists. The problem is that Congress has enabled that abuse of power by putting virtually no limits on the president’s ability to declare an emergency."

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