POTUS Donald Trump is considering a national emergency declaration along the U.S. southwest border as a means of bypassing Congress to secure funding for his long-sought border wall, according to sources who leaked details to news media.
ABC News reported that talks are on the “working level,” meaning no final decision has been made. But sources indicated that the funding could by retasked from money already approved for the Defense Department, among other line items.
Earlier, in response to reports about his alleged plans, POTUS Trump said he was considering declaring an emergency “for the security of our country.”
Currently, about 25 percent of the federal government is shut down because all Democrats and a some Republicans refuse to fund the president’s $5 billion wall request. Bills passed by the Democrat-controlled House on Thursday contained extra money for international abortion efforts but none for border barriers.
As for whether the president could legally declare a national emergency over border issues, he certainly has the law on his side. Under “50 U.S. Code § 1701 – Unusual and extraordinary threat; declaration of national emergency; exercise of Presidential authorities,” the law states:
Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.
Certainly, the influx of dangerous drugs — we have a recognized national opioid epidemic — along with the criminal threats posed by Mexican cartels and gang members and the potential for terrorists to infiltrate all can be considered as legitimate threats to U.S. national security.
There are legal limitations, however. Some experts have noted that the president could not spend money for any purposes that were not approved by Congress, so even though the Defense Department’s funding for the year has been passed and signed into law, that doesn’t mean POTUS could retask it for the purposes of building a wall.
He might be able to do so if the wall was built along about 115 miles of DoD-owned land that buttresses the Mexican border, but outside of that, probably not. Title 10 U.S. code states, in part:
In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense…may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.
In this case, POTUS would likely face resistance from defense hawks in his own party who don’t want to see billions of DoD dollars spent on anything other than the military.
And, like everything this president attempts, any act of declaring a national emergency for the purposes of enhancing border security will be challenged in federal court — though it’s not clear that the Judicial Branch has any authority to overrule a presidential declaration of national emergency.
Still, it’s obvious the president is looking at ways to keep a key campaign promise — a border wall — as new polling indicates that “immigration” has become a top issue in 2019 for members of both parties.
Never miss a story! Sign up for our daily email newsletter — Click here!