On Friday, Tump declared a state of emergency on the southern border separating the U.S. from Mexico. He made clear that he wasn’t satisfied with the money Congress set aside for border security, and particularly, the $1.3 billion allocated for Trump's pet project, building a wall (although the money is actually designated for fencing).
“I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do it much faster,” said Trump, who had wanted $5.7 billion for the wall.
But in declaring a national emergency for the project, he may have opened a Pandora’s box. After all, as House Speaker Nancy Pelosi D-Calif., pointed out, Trump is making an end-run around Congress. And the same tactic could be used by a future Democratic president, who might choose to declare a national emergency regarding gun violence.
“The precedent that the president is setting here is something that should be met with great unease and dismay by the Republicans,” she remarked.
We could be hearing more about national emergencies in the future. So, what law gave the president this power? Here is the rundown, along with links and resources for further study:
The National Emergencies Act: This law, approved in 1976 and signed by President Gerald R. Ford, authorizes a president to declare a national emergency. What did presidents do before 1976? To understand, consider a 1976 memo from Jim Cannon, a presidential adviser, who explained that the intent was to “reform the numerous existing statutes which have resulted from the numerous states of emergency declared during the past forty years. It would provide appropriate procedures related to future declarations of national emergencies.”
The memo continued that the bill would “authorize the president to proclaim the existence of future national emergencies, with provision for congressional review.”
What was the thinking? The idea was to curtail presidential power. Here is an explanation from the Congressional Research Service: “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.”
The research service recounted, “Growing public and congressional displeasure with the president’s exercise of his war powers and deepening U.S. involvement in hostilities in Vietnam prompted interest in a variety of related matters. For Sen. Charles Mathias (R.-Maryland), interest in the question of emergency powers developed out of U.S. involvement in Vietnam and the incursion into Cambodia.”
What makes a situation an emergency? In a 2007 paper on emergency powers, the National Research Service reached for the dictionary: “In the simplest understanding of the term, the dictionary defines an emergency as ‘an unforeseen combination of circumstances or the resulting state that calls for immediate action.’”
How does the National Emergencies Act work? The act relies on emergency authority provided in other statutes, explains the Association of State and Territorial Health Officials. “A national emergency declaration allows for the activation of these other statutory authorities. Emergency statutory provisions are not activated automatically, however; they must be specifically identified in the president’s declaration.”
Can a “state of emergency” be undone? Various politicians, including Pelosi, have said that they are considering options. Clearly, the original authors of the act intended that Congress should have a way out. One 1976 memo says that the act “provides for the termination of any national emergency declared by the President by (1) concurrent resolution of the Congress or (2) presidential proclamation.”
Resources:
- Association of State and Territorial Health Officials: National Emergencies Act, Sections 201 and 301.
- Brennan Center for Justice: Declared National Emergencies.
- Congressional Research Service: Declarations under the National Emergencies Act.
- Congressional Research Service: National Emergency Powers.
- Gerald R. Ford Presidential Library: National Emergencies Act memos.
- Website of House Speaker Nancy Pelosi: Transcript of Nancy Pelosi weekly press conference, Feb. 15, 2019.
- White House.gov: Congress Must Do More to Address the Border Crisis, Jan. 8, 2019.
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