Declaring A National Emergency To Build The Wall Would Be Unusual
It’s easy to see why the National Emergencies Act would appeal to President Trump. As the latest issue of the Atlantic magazine outlines, the law, enacted in 1976, gives the president broad authority to declare an emergency situation, unlocking powers mostly unfettered by the usual checks and balances. Trump probably sees it as being somewhat akin to transitioning from president back to a CEO.
And so it is that Trump has repeatedly toyed with the idea of declaring an emergency under the law to advance construction of a wall on the border with Mexico. He’s apparently close to giving up on trying to get Congress to appropriate the money he needs, a surrender that’s probably overdue given public opinion and the views of the Democratic majority in the House. So why not simply say that there’s an emergency on the border and that the government needs to swing into action without that frustrating demand that elected representatives sign off on the spending?
Well, experts will tell you that it’s not quite that easy, and others in government will note that the money still has to come from somewhere. (In this case, NBC News reports, the money would come from government projects, including the rebuilding of Puerto Rico.) But we are here to tell you something else: It would be an unusual application of an unusual law.
Data compiled by the Brennan Center for Justice at New York University indicate that 58 emergency declarations have been made since the law was enacted — 31 of which are still active. In theory, Congress also has to approve the continuation of these declarations, something it apparently has never done. So presidents can simply renew a declaration every year, as desired, or sign an executive order bringing the emergency to a close. If a year passes without renewal, the declarations lapse.
On average, the existing states of emergency, each of which has been renewed by Trump at least once, are about 13 years old. He has introduced three new ones, focused on applying international sanctions.
Notice the gap in the fourth still-active declaration on the list. According to the Brennan Center, the declaration “prohibiting certain transactions with respect to the development of Iranian petroleum resources” was not renewed as it should have been early last year and so lapsed for two months.
The other extant declarations also mostly deal with international geopolitics: There are sanctions in place against people in various African, South American and Asian countries, as well as Russia. Only a few of the declarations that have been declared over time haven’t dealt with some international action.
Several have focused on more-abstract issues, such as export controls or the threat of terrorism or cyberattacks. Only a couple deal with the sorts of emergencies that you might expect, such as the proclamation on Sept. 14, 2001, titled “Declaration of National Emergency by Reason of Certain Terrorist Attacks.” That one is still in effect. One introduced in 2009 to deal with a flu pandemic was allowed to expire the next year.
What’s missing from the list is a declaration addressing a crisis of dubious origin meant explicitly to free up construction money that Congress is disinclined to provide. Process aside, and ignoring the validity of giving presidents a sweeping tool like that provided under the National Emergencies Act, what Trump is proposing is starkly different from how the law has been used in the past.