There is a lot of discussion regarding the potential of Trump declaring a national emergency, the potential of a court challenge, and whether a Democratic president could declare other national emergencies. I thought I would list out some basics of how the legal process works and potential challenges.
1. There are multiple theories about a president’s emergency powers, but the one that clearly applies is the National Emergencies Act of 1976 (“NEA”). That is the most likely route Trump would take.
2. The first step in the NEA process is for the president to declare a national emergency. After that, the issue goes to Congress, which can pass a joint resolution (both House and Senate) terminating the emergency. If they do, the president can still veto it. If the president doesn’t veto it, or if the House and Senate vote to override a veto, the emergency is terminated. This ability of Congress to nullify a president’s declaration of emergency is the main “check” on presidential power in this area.
3. Critically, under the NEA the declaration of an emergency does not, itself, give the president additional authority. Instead, the declaration must be coupled with a provision of existing law that is triggered in the event of a declared emergency, which gives a specific authority to the president. In the case of the border wall, Trump is looking mainly to a law that allows reallocation of existing funds for military construction projects. The main statute he is looking at is 10 USC 2808, which provides:
(a)
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 that requires use of the
armed forces, the Secretary of Defense, without regard to any other provision of law, 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. Such projects may be undertaken only within the total amount of
funds that have been appropriated for
military construction including
funds appropriated for family housing, that have not been obligated.
(b)
When a decision is made to undertake military construction
projects authorized by this section, the Secretary of Defense shall notify, in an electronic medium pursuant to section 480, the appropriate committees of Congress
of the decision and of the estimated cost of the construction
projects, including the
cost of any real estate action pertaining to those construction
projects.
(c)
The authority described in subsection (a) shall terminate with respect to any war or national emergency at the end of the war or national emergency.
4. Point 3 above is important for another reason. There is a lot of talk about the potential that a Democratic president could declare an emergency and institute something like Medicare for All. That is not a possibility, because there is not a provision of existing law that allows that to be done. There is a good list here of the various provisions of federal law that can be activated in an emergency. A president needs to argue that one or more of these provisions gives him/her the power to do something after an emergency is declared.
5. Can a court overturn a presidential declaration of a national emergency under the NEA? Maybe, the issue hasn’t come up in a clear way. There would be two main arguments to make:
A. The situation cited by the president is not a true “emergency.” This is actually the tougher argument to make because the NEA does not define what a national emergency is. Rather, under the NEA a national emergency is whatever the president says it is (subject to Congress’s right to overrule). When a court construes a statute it interprets the words of the statute. Here, there are no words describing what is and is not an “emergency.” I believe it is unlikely that a court would be willing to overrule the presidential emergency declaration itself for two reasons. First, the court would not want to set the precedent that would limit the president’s ability to address a true emergency. Second, given the statutory structure, the president’s power under the NEA is not unlimited. Congress can overrule the president, and the president can only use those powers granted in laws that Congress has passed.
B. The president is not following the provisions of the specific emergency provision he’s seeking to activate (e.g., reallocation of military construction project dollars under 10 USC 2808). This argument may bear more fruit, because it is far from clear that a border wall in the current environment is a “military” project that “requires the use of the armed forces.” If a challenge is successful, I believe it will be on this basis.
6. What about separation of powers under the Constitution? There isn’t really a constitutional argument when it comes to the NEA process itself. This is because the president is not acting unilaterally, but would rather be invoking at least two laws that have been passed by Congress that specifically authorize presidential actions in an emergency. Congress does in fact control the “power of the purse,” but it can delegate authority for how allocated money can be spent — that is what Congress has done by passing the NEA and some of the laws that are triggered when an NEA emergency declaration occurs. If you re-read 10 USC 2808 above, you can see that Congress limits the president’s power to only money Congress has already allocated to military construction, and requires the president to keep Congress in the loop about what changes the president is authorizing (which could, in turn, cause Congress to use its authority under the NEA to terminate the emergency).
There would be a potential constitutional argument against any emergency acts that infringed on the constitutional rights of citizens. The NEA is just a federal statute, and a federal statute cannot authorize something that is unconstitutional. For example, an emergency that restricted the publication of newspapers could be challenged on First Amendment grounds. In the case of the wall, I don’t see any individual rights of citizens that would be infringed by the wall’s existence or construction.
7. Can’t we tie the issue up for years in court? Maybe, but it may be unlikely. Courts would recognize that if they allowed this to happen, it could undermine the core rationale for presidential emergency powers — the need to respond very quickly to a true emergency. Instead, we might find a sympathetic lower court, and perhaps a sympathetic appeals court. If one of the lower courts issued an initial injunction preventing presidential action, the Supreme Court has the ability, if it wishes, to immediately hear the case. Put another way, if the Supreme Court believes it is necessary, it can do away with all of the things that normally make lawsuits take a long time (there is a good discussion of this area here). We saw that happen to a significant extent in Bush v. Gore, when the start-to-finish process to reach a Supreme Court decision took only about a month.
Those are the basics but as we all know, anything can happen.