President Donald Trump will issue an emergency declaration on Thursday, in an attempt to divert government funds and begin construction on his proposed U.S.-Mexico border wall. He plans to do so while simultaneously after signing a bipartisan bill to avert another government shutdown and fund the government through the end of September.
The White House announced its intentions on Twitter, through a statement from press secretary Sarah Huckabee Sanders. “President Trump will sign the government funding bill, and as he has stated before, he will also take other executive action — including a national emergency — to ensure we stop the national security and humanitarian crisis at the border.”
Statement on Government Funding Bill: pic.twitter.com/DrNv9D4rEi
— Sarah Sanders (@PressSec) February 14, 2019
In making this move, the president hopes to use the powers accorded the White House under the National Emergencies Act to bypass Congress, which has thus far failed to furnish the desired funding for the wall. In late December, Trump indicated he would veto a short-term spending bill poised to pass both chambers on the grounds that it did not contain funding for the wall. That impasse spilled over into January, causing a 35-day partial government shutdown, the longest of its kind.
Ever since the shutdown ended on January 25, the president has intimated that he may avoid another stand-off with Congress by declaring an emergency declaration.
House Speaker Nancy Pelosi (D-CA) made it clear on Thursday afternoon that she thought Trump’s decision to sign the funding bill while declaring a national emergency was wrongheaded. “The president is trying to make an end run around Congress,” she told reporters.
In theory, declaring a national emergency could potentially allows the president to tap a $30 billion pool of funds set aside at the Department of Defense to fund the wall without obtaining congressional approval. However, it is unclear whether such a move will trigger an interdiction from the courts. Many observers have speculated that some of Trump’s advisers are under the assumption that the courts will, in fact, step in — thus providing the president with a face-saving way of ending his impasse with Congress over funding while allowing him to demonstrate a willingness to fight for his promised border wall.
White House officials discussing a potential exit ramp in the shutdown fight: Trump declares national emergency; courts intervene and stay the order; he and Congress re-open the gov't while case is litigated. https://t.co/e1wrN0Tii9
— Peter Nicholas (@PeterWSJ) January 9, 2019
Also unclear: What, if anything, constitutes an emergency.
The White House has spent a considerable amount of effort attempting to build a case that the situation at the southern border has reached a crisis point, without any compelling data points.
The president sent troops to the southern border in late October of 2018 ahead of the midterm elections, citing a caravan of migrants that was on its way from Central America to seek asylum as the proximate cause of the deployment. But these troops were recalled a month later, ahead of that caravan’s arrival.
During the first weeks of the partial shutdown, a central White House talking point rested on a quickly debunked claim from Press Secretary Sarah Huckabee Sanders that 4,000 suspected terrorists had been detained by border patrol in an attempt to enter the country. (The actual figure was six.)
Last January, the president hyped an Oval Office address in which it was widely believed that a emergency declaration would be ordered. During that televised address, however, Trump backed down on declaring a national emergency.
It was similarly suggested that Trump might use the occasion of the State of the Union address to issue such a declaration; once again, he demurred.
It’s not clear what, if anything, has gotten more emergent since then.
Trump has the power to make such declarations thanks to the National Emergencies Act, a 1970s-era bill that enumerated presidential powers during a period of crisis. That law was written under the assumption that the occupant would always be judicious in the use of their powers, as opposed to a serial liar with no regard for governing norms. The law provides Congress with the means of checking this presidential power: Should both houses of Congress vote to terminate the emergency declaration, the president’s powers would be abridged. However, as NPR’s Tamara Keith reported, “in the more than 40 years since the law was passed, only one member of Congress” has ever attempted to use this lever.
Experts who spoke to ThinkProgress ahead of Trump’s January Oval Office address expressed some misgivings over these presidential powers.
“There’s almost no restriction on the ability of the president to declare an emergency, which is one of the shortfalls of the National Emergencies Act,” said Andrew Boyle, counsel for the Brennan Center’s Liberty & National Security Program.
“If you create an emergency, it is a prelude for expanding executive authority and power,” said author and historian Robert Dallek. “That’s what has always been a bit unnerving about it. Do you want to see a president who is reaching for powers that he doesn’t normally assume or enjoy?”
“I find it disquieting,” he added.
Members of Trump’s own party have expressed similar anxiety over the use of an emergency declaration. As Sen. Patrick Toomey (R-PA) told the New York Times in early February, “It would be a bad precedent, I think, for the president to decide to invoke national security as a way to bypass a congressional logjam, he said, adding, “I can imagine future presidents using that for purposes I would find very objectionable.” The Times reported that ” about a dozen Republican senators, publicly and privately” expressed agreement at the time.
In her remarks, Thursday, Pelosi hinted at how the president’s decision might establish a new precedent by invoking the one-year anniversary of the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida. “Want to talk about a national emergency? Let’s talk about today,” said Pelosi, “The epidemic of gun violence in America, that’s a national emergency.”
“The Republicans should have some dismay about the door they are opening, the threshold they are crossing,” she added.
Additional reporting by Adam Peck.