The NCSL Blog

11

By Lucia Bragg

The federal government faces another possible shutdown on Feb. 15 at midnight if an agreement over funding for a border wall isn’t reached.

“I’ll say 50-50 we get a deal,” said Senator Richard C. Shelby of Alabama, right, a key figure in the border security negotiations.Credit: Erin Schaff for The New York TimesIt’s also possible President Donald Trump may, by executive order, declare a national emergency to build the wall. We decided to take a closer look at that process.

Section 201 of the National Emergencies Act (NEA) authorizes the president nearly unlimited discretion to declare a national emergency. The NEA was enacted by Congress in 1976 to formalize presidential and congressional power—and related checks and balances—surrounding national states of emergency.

However, this formalization does not include definitions for or requirements of the national emergency itself. The law does not itself provide authorities associated with a state of national emergency, though it does allow activation of powers provided the president in other statutes.

This activation is not altogether automatic. Section 301 of the law requires the president to first identify in his emergency declaration the statutory provisions that enable him or his cabinet members to further act. Once the president issues his declaration, its transmission to Congress and publishing in the Federal Register must be immediate.

Reversal of the declaration can be achieved automatically on the anniversary of the declaration, by a presidential proclamation, or via a joint resolution passed by Congress. The president can avoid automatic annual termination of the declaration by submitting a renewal to Congress within 90 days of the anniversary date. While both houses of Congress are required to jointly review the emergency’s validity every six months, Congress can pass a joint resolution terminating the emergency at any time.

The NEA in 2019

Previous national emergency declarations include a range of events, including its use during the Sept. 11 terrorist attacks in 2001 or the H1N1 influenza pandemic in 2009.

According to the Brennan Center’s December 2018 analysis on the statutes that are activated by a national emergency declaration, two laws may allow the president to call a national emergency for this purpose:

  1. 10 U.S.C. 2808 (a), allowing the secretary of defense to undertake military construction projects that are necessary to support use of the armed forces.
  2. 33 U.S.C. 2293, allowing the secretary of the Army to terminate or defer any Army civil works project and apply the resources (including funds, personnel, and equipment) of the Army’s civil works program to authorized civil works, military construction, and civil defense projects considered essential to national defense.

 

Both would allow the president to move funds within the Department of Defense for military and construction projects or civil defense projects. While it’s true that the military cannot be used for law enforcement activities on American soil, it isn’t clear whether construction of a border wall would fall under law enforcement or simply infrastructure construction.

In 2018, Congress also appropriated more than $17 billion to the U.S. Army Corps of Engineers (USACE) budget intended for disaster recovery and mitigation projects. The president has indicated his interest in recent weeks in redirecting for wall construction a portion of the nearly $14 billion of that money that remains unspent in USACE accounts.

Members in both parties have said a disapproval resolution has a good chance of passing. Democrats have been clear on their opposition to a border wall and willingness to tie the issue up in the courts.

Senate Majority Whip John Thune (R-S.D.) said earlier last week that it would be a "tough vote" for Republicans to defeat a disapproval resolution given a growing number of Republican senators see the funds redirection as constitutional overreach. For example, Senator John Cornyn (R-Texas) noted last week, “It's the Congress' role to appropriate money and to take money for one purpose and to spend it for another … I think there ought to be institutional concerns under the separation of powers."

A legal challenge to a declaration in the courts is another possibility. Though the courts have historically avoided questioning the basis of national emergencies called by presidents, the limitations placed on the military funding the president would be likely to use may result in a court challenge.

Lucia Bragg is a policy specialist with NCSL's State-Federal Relations Division.

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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.