Congress can avoid trumped up national emergency declaration

Congress can avoid trumped up national emergency declaration
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Donald TrumpDonald TrumpFormer New York state Senate candidate charged in riot Trump called acting attorney general almost daily to push election voter fraud claim: report GOP senator clashes with radio caller who wants identity of cop who shot Babbitt MORE seems determined to build a wall along the border between the United States and Mexico, while Congress seems equally determined not to give him the money to do it. This was true when Republicans held control of Congress, and the president seems even less likely to get the money with Democrats having a majority in the House of Representatives.

With the front door of the legislative process closed, the president is now threatening to go through the back door of federal law, by declaring a national emergency and seeking to get his funding that way. Declaring a national emergency alone will not get him very far, much as Harry Truman learned when the Supreme Court rebuffed his attempt to force the steel industry to go back to work during the Korean War. This time the president has a statute that some think supports his goal, but he has many hurdles that will be difficult to overcome when the inevitable lawsuits are filed.


First, a national emergency conjures up a sudden event that harms the country. This is an interpretation buttressed by the alternative for invoking Section 2808 of Title 10, which consists of a “declaration of war” that the Constitution assigns to Congress alone. Whatever problems there may be along the southern border, it is hard to see that they rise to that level or why they have turned so much worse. Section 2808 limits the national emergencies that trigger its use to those that “require use of the armed forces,” which is another serious difficulty for the president.

Second, the president is looking to Section 2808 because it enables him to use existing appropriated funds for certain projects for which there is no funding. This sounds just like what the president needs. But there are some additional limits, mainly that the new uses must be for “military construction projects,” which again seems quite far afield from the wall. Furthermore, even those projects may only be used if they are “necessary to support such use of the armed forces,” thus doubly the pressure to explain why the wall is a military operation instead of a civilian operation.

Third, the president can take only money from funds “appropriated for military construction projects” and even then only from funds “that have not been obligated.” We are now four months into the fiscal year, and it would be surprising if the military has not already obligated or entered into contracts for many of those projects, already limiting the available pool. However, what is more significant from a political, if not a legal, perspective is that those other projects have significant sponsors in the states where they were supposed to be in but would no longer happen.

Even those members of Congress who might vote for new money for the wall are likely to have a different view if they find out that the money is coming from their pet projects close to home. Moreover, this avenue will only get the president funds for this year, which will barely make a dent in the wall that is estimated to cost far more than the $5.7 billion he wants now and an even greater amount that he can dig up from Section 2808.

When the lawsuits follow from property owners whose land is being taken for the wall, or from the beneficiaries of the superseded projects, their outcome is difficult to predict. The Supreme Court has traditionally been reluctant to second guess the president on the decision to declare a national emergency, even one as dubious as this. But given all the other conditions required for the president to be allowed to use this other money for the wall, that may be too much even for the Supreme Court.

There is one easy solution that Congress can implement to end the debate and the lawsuits before they are filed. Current government funding will run out in less than two weeks, and the president cannot afford another shutdown over the wall. All Congress has to do is insert a sentence in the next funding bill stating that the “provisions of Section 2808 of Title 10 may not be used during the current fiscal year for the funding of any part of a wall or other barrier along the border between the United States and Mexico.” The president could still try to persuade Congress to fund his wall through the front door of ordinary appropriations legislation, but not through the back door of a trumped up national emergency declaration.

Alan Morrison teaches constitutional law as a professor and is the Lerner Family Associate Dean of Public Interest at George Washington University.