Analyzing President Trump’s national emergency declaration

By Robert C. Jones Jr.

Analyzing President Trump’s national emergency declaration

By Robert C. Jones Jr.
Miami Law’s Frances Hill answers key questions about the National Emergencies Act.

It was supposed to be a day of celebration—a day to honor all U.S. presidents, past and present.

But instead, President’s Day 2019 was a day of opposition, as thousands of people took to the streets across the nation to protest President Trump’s declaration of a national emergency at our border with Mexico in order to access billions of dollars allocated for other purposes and use that money to build a wall.

“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,” Trump said from the White House Rose Garden last week, claiming that the flow of drugs, criminals, and illegal immigrants from Mexico poses a threat to national security.

Trump’s move has ignited a debate over the separation of powers outlined by the Constitution. Meanwhile, the first lawsuits have been filed to block the declaration.

But just what is the National Emergencies Act, and how has it been used in the past? Why has last week’s declaration triggered so much controversy?

Frances HillFrances R. Hill, professor of law and Dean’s Distinguished Scholar for the Profession at the University of Miami School of Law, who teaches and writes in the area of constitutional law, answers key questions about the Act.

What is the National Emergencies Act of 1976?

The National Emergencies Act of 1976 was a response to the Watergate crisis that ended with the resignation of President Richard Nixon in 1974 as he faced impending impeachment for abusing the powers of his office. The Act authorizes the president to declare a national emergency without requiring evidence of an emergency. Once the president has declared a national emergency, the Act gives the president broad but not unlimited powers that he would not otherwise have. The scope of these powers is not apparent from the text of the Act. It requires instead tracing the specific authority set forth in over 100 statutes that include specific provisions that may be activated by the declaration of a national emergency under the Act, depending on the powers claimed in the text of the executive order or other proclamation through which the president declared the national emergency.

How many times has the Act been declared?

Prior presidents have declared 58 emergencies under the Act, and approximately 31 of them are still in effect.

Under what circumstances has it been used?

Virtually all of these national emergencies have involved foreign economic activity, including economic sanctions. In only two of the prior presidential declarations of a national emergency have presidents claimed the authority to reallocate funds previously appropriated for different purposes. President George H.W. Bush declared a national emergency in the invasion of Kuwait, and President George W. Bush did the same after 9/11. In none of these prior instances of the declaration of a national emergency has Congress used the authority it has under the Act to monitor or terminate the actions of the president. That does not appear to be likely in this case.

What does President Trump propose to do?

The Feb. 15, 2019, Presidential Proclamation in Declaring a National Emergency Concerning the Southern Border of the United States, states that “[t]he current situation at the southern border ... threatens core national security interests and constitutes a national emergency.” It then argues that “[b]ecause of the gravity of the current emergency situation, it is necessary for the Armed Forces to provide additional support to address the crisis.” The Act requires that the president reference specific provisions of law. In this case, the president references the “construction authority” in 10 U.S.C. § 2808 that becomes available in the event of war or the declaration of a national emergency “that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.” The president has stated repeatedly that this provision will allow him to use over $3 billion previously appropriated by Congress specifically for military construction projects for what he describes as a “wall” along the United States border with Mexico. In addition, the Proclamation also references the “transfer and acceptance of jurisdiction over border lands” to the military. This would make any construction undertaken on the “border lands” subject to military control.

What issues do these actions raise, and why are they so controversial?

The proposed actions pose a direct challenge to the authority of Congress to appropriate funds for government operations. Article I, § 9, Cl. 7 provides that “[n]o money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” In a government system based on the allocation of authority among three co-equal branches, the executive branch does not have the authority to appropriate funds to itself. The issue here is whether allowing the president to use a national emergency declaration to override the allocation of authority in the Constitution is what is happening in this instance. It is possible to argue that Congress has ceded its constitutional authority to the president by enacting the Act and the provisions in other statutes over time. In a case unrelated to the Act, the Supreme Court held that Congress could not cede its authority over appropriations by enacting a line-item veto permitting the president to change the text of an enacted statute (Clinton v. City of New York, 524 U.S. 417 (1998).This case may, or may not, be determined to be relevant to the issue here.

But why does this matter so much? Why do arcane disputes over what branch of government has what kind of authority over the expenditure of government funds matter?

The principles guiding the consideration of such issues is generally thought to have been expressed in a 1952 case involving a labor dispute during the Korean War and finding that President Truman lacked the authority to seize the nation’s steel mills despite his claim that national security required that troops engaged in active combat in Korea relied on steel for military equipment. The justices expressed concern about “tyranny” arising from unchecked executive power and the importance of countervailing authority in the federal government.Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).What, if any, relevance this case might have in the discussion of current controversies remains to be determined.

The issue of military control over the border area raises issues of federalism, issues of private property and eminent domain, and issues relating to Native American Nations' control of their lands. The Takings Clause of the Constitution provides that property cannot be seized without compensation. The issue at the core of all the possible claims and disputes is what constitutes an

emergency for purposes of the Act. Is there an “emergency” at the southern border? What data are relevant? What legal criteria are relevant? There is no agreement on any of this and the Act provides no guidance.

What actions can be taken by Congress to terminate a national emergency declared under the Act? What actions might be taken by other persons to prevent implementation of participation actions pursuant to the declaration of a national emergency?

Congress can enact a joint resolution of disapproval authorizing termination of the national emergency declared by the president. Such a joint resolution may begin in either house of Congress and requires only a majority to pass. Any such joint resolution must be signed by and may be vetoed by the president. In the case of a presidential veto, Congress can override the veto by a two-thirds majority of each house of Congress.

Congress also has the authority to review the expenditures made under the Act every six months and to consider termination of the declaration of emergency at that time. Congress has not been diligent in its exercise of these powers to review and to reconsider the possibility of termination. Whether it will become more diligent remains to be seen.

Litigation is already being filed or considered. Either house of Congress can litigate issues relating to authority to appropriate funds. Eminent domain issues are likely to be litigated by numerous property owners in border areas. Native American nations may choose to litigate their rights to their lands. States are preparing to litigate issues relating to what they may see as incursions of presidential authority into policy areas left to the states under the Constitution.

Is there a chance Congress will repeal or reform the Act?

It is unclear whether Congress will repeal or reform the National Emergencies Act of 1976. Reforms could include attempting to define criteria of what constitutes and emergency and whether the power of Congress to terminate an existing state of emergency are sufficient. Congress might also require more carefully considered limitations on the powers that a president might be able to invoke by simply declaring a state of emergency. Requiring a close nexus between the identified emergency and the proposed action might be among the reforms considered.