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Trump Declares National Emergency to Fund Border Wall

February 15, 2019

President Donald Trump declared a national emergency on Feb. 15 to address the humanitarian crisis on the southwest border and secure funds for border-wall construction. The emergency declaration, combined with a spending bill passed by Congress on Feb. 14, will provide his administration with $8 billion for wall construction, the president said.

Director of the Office of Management and Budget Mick Mulvaney told reporters on a conference call on Feb. 15 that with the emergency declared, the administration will shift $600 million from the Treasury Department, and $6.1 billion from the military budget for border-wall construction.

The president pointed out that drugs, gangs, and illegal aliens are pouring into the country, necessitating the need to declare a national emergency.

“We’re going to confront the national security crisis on our southern border and we’re going to do it one way or the other. We have to do it,” Trump said at the White House. “We have tremendous amounts of drugs flowing into our country, much of it coming from the southern border.”

Congress passed a $333 billion spending bill on Feb. 14 that includes $1.375 billion in funds for the construction of a border wall. The amount is far short of the $5.7 billion Trump demanded last year. Three weeks ago, the president promised to use executive powers if lawmakers failed to secure the funds he asked for.

The $6.1 billion in funds to be drawn from the Department of Defense budget includes $2.5 billion that will be reallocated from the counter drug activity purse and $3.6 billion from the military construction budget.

Trump underlined that national security declarations are a common practice, with 31 already in effect as he spoke. Trump said that his administration will use an emergency declaration signed by President Barack Obama to combat drug cartels. Trump nevertheless expected to be sued. He was optimistic that the Supreme Court would ultimately uphold the declaration.

Several “angel moms,” women whose children or husbands have been killed by illegal aliens, attended the president’s announcement.

Family members hold portraits of loved ones that were victims of crimes committed by illegal aliens, as President Donald Trump delivers remarks, in the Rose Garden at the White House on Feb. 15, 2019. (Brendan Smialowski/AFP/Getty Images)

“I will sign the final order as soon as I get into the Oval Office and we will have a national emergency, and we will then get sued, and they will sue us in the Ninth Circuit, even though it shouldn’t be there, and then we will possibly get a bad ruling, and then we will get another bad ruling, and then we will end up in the Supreme Court, and hopefully we will get a fair shake, and we’ll win in the Supreme Court,” Trump said with comedic timing, drawing laughter from the audience in the Rose Garden.

The $1.375 billion for wall construction allocated in the spending bill will fund construction of 55 miles of physical barriers in the Rio Grande Valley. The spending bill will fund the government through the end of the fiscal year in September.

Since taking office, Trump has demanded that Congress fund construction of a wall on the southern border, his landmark campaign promise. Democrats, whose votes are needed to reach a 60-vote threshold in the Senate, have thwarted all attempts. Last year, the president followed through on a promise and refused to sign a spending bill that did not include funds for a border wall. As a result, Congress missed a deadline to fund the government, triggering a partial shutdown in December last year. The shutdown stretched on for 35 days, the longest on record.

On average, approximately 2,000 illegal aliens enter the United States on a daily basis, according to the White House. Many of those who enter have criminal histories or are gang members. Cartels are taking advantage of the porous border to smuggle vast amounts of drugs into the country, contributing to an already devastating opioid crisis. Meanwhile, some 10,000 children are trafficked across the border every year to be sold as sex slaves.

As of Feb. 15, there were 31 national emergencies in effect in the United States on issues like drug trafficking, terrorism, and cybercrime. Trump declared three of the emergencies. The president issued the first national emergency in December 2017, targeting perpetrators of human rights abuses and corruption. Trump issued his second national emergency in September last year, allowing for sanctions against those who interfere in U.S. elections. He declared a third national emergency in November 2018, addressing human rights abuses and corruption in Nicaragua.

 

https://fas.org/sgp/crs/natsec/98-505.pdf

Order Code 98-505 GOV

National Emergency Powers (First Few Pages Only Reproduced Here)

Updated August 30, 2007

Harold C. Relyea Specialist in American National Government Government and Finance Division

National Emergency Powers

Summary

The President of the United States has available certain powers that may be exercised in the event that the nation is threatened by crisis, exigency, or emergency circumstances (other than natural disasters, war, or near-war situations). Such powers may be stated explicitly or implied by the Constitution, assumed by the Chief Executive to be permissible constitutionally, or inferred from or specified by statute. Through legislation, Congress has made a great many delegations of authority in this regard over the past 200 years.

There are, however, limits and restraints upon the President in his exercise of emergency powers. With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency. Disputes over the constitutionality or legality of the exercise of emergency powers are judicially reviewable. Indeed, both the judiciary and Congress, as co-equal branches, can restrain the executive regarding emergency powers. So can public opinion. Furthermore, since 1976, the President has been subject to certain procedural formalities in utilizing some statutorily delegated emergency authority. The National Emergencies Act (50 U.S.C. 1601-1651) eliminated or modified some statutory grants of emergency authority; required the President to declare formally the existence of a national emergency and to specify what statutory authority, activated by the declaration, would be used; and provided Congress a means to countermand the President’s declaration and the activated authority being sought. The development of this regulatory statute and subsequent declarations of national emergency are reviewed in this report, which is updated as events require.

Contents

BackgroundandHistory ………………………………….1 TheEmergencyConcept ………………………………….4 LawandPractice ……………………………………….5 Congressional Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 TheNationalEmergenciesAct …………………………….10 Overview ……………………………………………18

National Emergency Powers:
ASelectedBibliography …………………………………20 Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Books ………………………………………………21 Documents …………………………………………..21

List of Tables

Table1. DeclaredNationalEmergencies,1976-2007 ………………..13

National Emergency Powers

Federal law provides a variety of powers for the President to use in response to crisis, exigency, or emergency circumstances threatening the nation. Moreover, they are not limited to military or war situations. Some of these authorities, deriving from the Constitution or statutory law, are continuously available to the President with little or no qualification. Others — statutory delegations from Congress — exist on a stand-by basis and remain dormant until the President formally declares a national emergency. These delegations or grants of power authorize the President to meet the problems of governing effectively in times of crisis. Under the powers delegated by such statutes, 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, restrict travel, and, in a variety of ways, control the lives of United States citizens. Furthermore, Congress may modify, rescind, or render dormant such delegated emergency authority.

Until the crisis of World War I, Presidents utilized emergency powers at their own discretion. Proclamations announced the exercise of exigency authority. However, during World War I and thereafter, Chief Executives had available to them a growing body of standby emergency authority which became operative upon the issuance of a proclamation declaring a condition of national emergency. Sometimes such proclamations confined the matter of crisis to a specific policy sphere, and sometimes they placed no limitation whatsoever on the pronouncement. These activations of stand-by emergency authority remained acceptable practice until the era of the Vietnam war. In 1976, Congress curtailed this practice with the passage of the National Emergencies Act.

Background and History

The exercise of emergency powers had long been a concern of the classical political theorists, including the eighteenth-century English philosopher John Locke, who had a strong influence upon the Founding Fathers in the United States. A preeminent exponent of a government of laws and not of men, Locke argued that occasions may arise when the executive must exert a broad discretion in meeting special exigencies or “emergencies” for which the legislative power provided no relief or existing law granted no necessary remedy. He did not regard this prerogative as limited to wartime, or even to situations of great urgency. It was sufficient if the “public good” might be advanced by its exercise.1

1 Thomas I. Cook, ed., Two Treatises of Government, by John Locke (New York: Hafner, 1947), pp. 203-207; Edward S. Corwin, The President: Office and Powers, 1787-1957, fourth revised edition (New York: New York University Press, 1957), pp. 147-148.

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Emergency powers were first expressed prior to the actual founding of the Republic. Between 1775 and 1781, the Continental Congress passed a series of acts and resolves which count as the first expressions of emergency authority.2 These instruments dealt almost exclusively with the prosecution of the Revolutionary War.

At the Constitutional Convention of 1787, emergency powers, as such, failed to attract much attention during the course of debate over the charter for the new government. It may be argued, however, that the granting of emergency powers by Congress is implicit in its Article I, section 8 authority to “provide for the common Defense and general Welfare,” the commerce clause, its war, armed forces, and militia powers, and the “necessary and proper” clause empowering it to make such laws as are required to fulfill the executions of “the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

There is a tradition of constitutional interpretation that has resulted in so-called implied powers, which may be invoked in order to respond to an emergency situation. Locke seems to have anticipated this practice. Furthermore, Presidents have occasionally taken an emergency action which they assumed to be constitutionally permissible. Thus, in the American governmental experience, the exercise of emergency powers has been somewhat dependent upon the Chief Executive’s view of the presidential office.

Perhaps the President who most clearly articulated a view of his office in conformity with the Lockean position was Theodore Roosevelt. Describing what came to be called the “stewardship” theory of the presidency, Roosevelt wrote of his “insistence upon the theory that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by the Congress under its constitutional powers.” It was his view “that every executive officer, and above all every executive officer in high position, was a steward of the people,” and he “declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it.” Indeed, it was Roosevelt’s belief that, for the President, “it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws.”3

Opposed to this view of the presidency was Roosevelt’s former Secretary of War, personal choice for, and actual successor as Chief Executive, William Howard Taft. He viewed the presidential office in more limited terms, writing “that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise.” In his view, such a “specific grant must be

2 See J. Reuben Clark, Jr., comp., Emergency Legislation Passed Prior to December 1917 Dealing with the Control and Taking of Private Property for the Public Use, Benefit, or Welfare, Presidential Proclamations and Executive Orders Thereunder, to and Including January 31, 1918, to Which Is Added a Reprint of Analogous Legislation Since 1775 (Washington: GPO, 1918), pp. 201-228.

3 Theodore Roosevelt, An Autobiography (New York: Macmillan, 1913), pp. 388-389.

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either in the Federal Constitution or in an act of Congress passed in pursuance thereof. There is,” Taft concluded, “no undefined residuum of power which he can exercise because it seems to him to be in the public interest….”4

Between these two views of the presidency lie various gradations of opinion, resulting in perhaps as many conceptions of the office as there have been holders. One authority has summed up the situation in the following words:

Emergency powers are not solely derived from legal sources. The extent of their invocation and use is also contingent upon the personal conception which the incumbent of the Presidential office has of the Presidency and the premises upon which he interprets his legal powers. In the last analysis, the authority of a President is largely determined by the President himself.5

Finally, apart from the Constitution, but resulting from its prescribed procedures, there are statutory grants of power for emergency conditions. The President is authorized by Congress to take some special or extraordinary action, ostensibly to meet the problems of governing effectively in times of exigency. Sometimes these laws are only of temporary duration. The Economic Stabilization Act of 1970, for example, allowed the President to impose certain wage and price controls for about three years before it expired automatically in 1974.6 The statute gave the President emergency authority to address a crisis in the nation’s economy.

Of course, many of these laws are continuously maintained or permanently available for the President’s ready use in responding to an emergency. The Defense Production Act, originally adopted in 1950 to prioritize and regulate the manufacture of military material, is exemplary of this type of statute.7

Finally, there are various stand-by laws that convey special emergency powers once the President formally declares a national emergency activating them. In 1973, a Senate special committee studying emergency powers published a compilation identifying some 470 provisions of federal law delegating to the executive extraordinary authority in time of national emergency.8 The vast majority of them are of the stand-by kind — dormant until activated by the President. However, formal procedures for invoking these authorities, accounting for their use, and

4 William Howard Taft, Our Chief Magistrate and His Powers (New York: Columbia University Press, 1916), pp. 139-140; for a direct response to Theodore Roosevelt’s expression of presidential power, see William Howard Taft, The Presidency (New York, Charles Scribner’s Sons, 1916), pp. 125-130.

5 Albert L. Sturm, “Emergencies and the Presidency,” Journal of Politics, vol. 11, February 1949, pp. 125-126.

  1. 6  See 84 Stat. 799-800, 1468; 85 Stat. 13, 38, 743-755; and 87 Stat. 27-29.
  2. 7  See 64 Stat. 798; 50 U.S.C. App. 2061 et seq. (1994).

8 U.S.Congress,SenateSpecialCommitteeontheTerminationoftheNationalEmergency, Emergency Powers Statutes, 93rd Cong., 1st sess., S.Rept. 93-549 (Washington: GPO, 1973).

regulating their activation and application were established a while ago by the National Emergencies Act of 1976.9

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