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President Trump and congressional Democrats remain stuck on his call for $ 5.7 billion for a southern border wall and their refusal to provide it. Unable to convince Democrats in the House and Senate to provide him with the necessary funds in exchange for lifting the closure of the government, Mr. Trump launched the idea of calling a national emergency to the construction of the wall. without congressional approval.
million. Trump asserted that there was a "border crisis" because of the large number of people seeking to travel to the United States (although it does not differentiate between illegal immigrants and claimants d & # 39; asylum). But he addressed the nation from the Oval Office Tuesday night and did not call a national emergency.
He declared last week that "I can do it if I wish." "I think we could work on an agreement," he said on Wednesday. But Mr. Trump threatened, "And if we do not do it, I could go that route, I have the absolute right to carry out a national emergency if I wish."
After bursting out of a controversial meeting at the White House with congressional leaders on Wednesday, Mr. Trump could change his mind.
What does it mean to call a national emergency?
Ironically, the National Emergency Act of 1975 aimed to coerce the power of the presidency, to create a structure allowing the president to declare national emergencies in the post-Watergate era. Under this law, the president can declare a national emergency, but must define the specific emergency powers that he uses under existing laws. So Mr. Trump should justify his actions using laws already passed by Congress.
What laws could Mr. Trump use to build the wall?
There are some laws that could allow the administration to use the Pentagon's money to build the wall, once it declares a national emergency. One would allow the Secretary of Defense to "undertake military construction projects" that are "necessary to support such use of the armed forces".
Another law authorizes the Pentagon to "use the resources of the Department of the Army's civil engineering works program and to reprogram them" to build or assist in the construction, maintenance, and construction of the land. operation, maintenance and repair of authorized civil works, construction and civil defense projects essential to national defense ". Despite its name, the Army Corps of Engineers is almost entirely composed of civilians who manage construction contracts, so the troops would not build the wall.
There are some other more modest financial flows that would be available to the president as well as he declared a national emergency. The Secretary of Defense is authorized to undertake a military construction project if "the project is vital to national security", but only $ 50 million is allocated to it each year, well below the demand of $ 5.6 billion. Mr. Trump's dollars.
and the Nationality Act, the President may declare an "immigration emergency", which is defined as "the actual or imminent influx of aliens that is either of a such magnitude or that has other features such as the effective enforcement of US immigration laws is beyond the existing capabilities. "A Attorney General may ask the President to respond to an immigration emergency and to specify the measures to be taken. However, only $ 20 million is available under this act.
Can Congress Cancel the Statement of National Emergency?
Congress can cancel a national emergency, but it would require a rare bipartisanship. Congress should approve a joint resolution, which could easily be passed by the Democrat-controlled House, but could face opposition to the Republican-majority Senate. If both houses adopt the joint resolution, it will take the signature of the president and it will be unlikely that Mr. Trump will sign a bill to cancel his own declaration.
Congress should then adopt the joint resolution with a majority at the veto. This means that two-thirds of both houses should approve the bill.
Moderated GOP Senator Susan Collins of Maine seemed unhappy with the possibility of Trump being able to invoke the law. "I think it would be a very dubious move from a constitutional point of view," she told NBC News. "Without congressional authorization, this is not what I think is provided for by the National Emergency Law.
What about a court challenge?
Some argue that the jurisprudence established by the Supreme Court in 1953, Youngstown v. Sawyer, prevents the president from using this power. In that case, the court concluded that President Harry Truman's attempt to nationalize the steelworks through his power as commander-in-chief was unconstitutional.
"The decision imposed fundamental constitutional limits on the power of the president to claim a state of emergency – in this case, the Korean War allowed him to depart from express provisions preventing him from doing so. to use these powers in the interior of the country, "said Yale Law Professor Bruce Ackerman in an opinion piece published in the New York Times last week. Democrats also cite Youngstown v. Sawyer as proof that Mr. Trump can not call a national emergency to build a border wall.
"Look, if Harry Truman could not nationalize the steel industry in war, this president would not do it." We have the power to declare an emergency and build a multi-billion dollar wall on the border, "Adam Schiff, chairman of the House Intelligence Committee, told reporters Sunday. a non-beginner. "
Ackerman also explained in his article that it would be illegal to use a national emergency to build a wall, as laws stipulated that military forces could not be used for military purposes. domestic
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