Putting the issue of immigration policy aside, President Trump’s declaration of a national emergency at the U.S. – Mexico border defies the precedent set by previous presidents under the 1976 National Emergencies Act. As a result, his declaration is likely to be heavily challenged by the legislative and judicial branches.
After the longest government shutdown in history concluded with an apparent victory for Democrats, and negotiators prevented the United States from being thrown back into administrative ennui, President Trump pulled his threat of a national emergency off the wall like Chekhov’s gun and fired a shot through presidential precedent. President Trump and his Acting Chief of Staff Mick Mulvaney contend that the president has “the authority to defend the nation,” but the declaration has been contested by continuously contentious liberal judicial activists and congressional challenges in the House of Representatives. They are joined by 16 states, including California and New York, that have begun legal action against the president. Despite the stark divisions in this case, the nature and limits of national emergencies has a more complicated background.
The origins of national emergencies
The power of the president to declare a national emergency has changed substantially since Presidents Wilson and Franklin D. Roosevelt originated the concept in the early 20th century. Wilson utilized this executive power to prepare an isolationist America for a seemingly inevitable war, increasing the number of ships carrying important resources, such as food, metal, and oil, a mere three months before asking Congress to declare war on Germany. President Roosevelt used this ability to advance his domestic agenda in the depths of the Great Depression, prohibiting the hoarding of gold to contain the unfolding banking crisis.
In both of these scenarios, these notably dominant presidents had full Democratic control of the House and Senate – and their emergency declarations came amidst major global events that gave each commander-in-chief great political freedom to stretch the power of his office. However, this power proved to be so enduring that President Roosevelt’s emergency still remained in effect in 1973 – 40 years, five presidents, and seven recessions later. The Special Committee on the Termination of the National Emergency discussed the governmental implications of this and three other outstanding emergencies in a lengthy report, which ultimately led to the passage of the National Emergencies Act in 1976.
The National Emergencies Act was introduced in 1975 with the express purpose of checking the president’s power on indefinite declarations of emergency. Signed into law by President Gerald Ford on September 14, 1976, this law details the potential consequences of President Trump’s attempt to gain full funding for the border wall. First, it gives Congress the authority to undo national emergencies, which today puts the weight of congressional approval in the hands of several Senate Republicans who are not pleased with the situation. While President Trump can veto this action, the Senate and House must reconvene every six months and vote annually to renew the emergency. As observed in November 2018, big changes can come quickly in Congress.
National emergencies in the modern day
The ostensibly limited nature of the National Emergencies Act seems to be forgotten in our current system, as those emergencies of the Obama, Bush, Clinton, and even Carter Administrations hang in the air. There are currently 32 active national emergencies in the United States – some, such as an emergency set to prevent foreign interference in elections, were enacted as recently as last year. Others are decades old, like Jimmy Carter’s 1979 declaration on “the situation in Iran,” and have been annually renewed by Congress since, despite the return of American hostages on the first day of Ronald Reagan’s presidency. The embargoes, nuclear fears, announcement of Iran as an “Axis of Evil”, and short-lived peace settlements have rendered a politically appropriate opportunity to end the dated emergency unavailable.
The National Emergencies Act can be seen as a sibling in purpose of the War Powers Resolution –both constrict the otherwise-boundless authority of the president by returning a check to the Congress. It can also be seen as equally futile, as ambitious commanders-in-chief and lethargic legislatures continue to allow broad executive strokes to be re-asserted in the status quo.
Among these 32 standing emergencies exist the prohibition of dealing with terrorists who damaged a now long-deceased Middle East Peace process, the end of dealing with no-longer-warring factions in the Democratic Republic of Congo, and transactional bans in Libya from their first Civil War. As a president whose agenda has partially focused on getting rid of “redundancy and duplication,” it makes sense for President Trump to slash the number of existing emergencies to clear room for his current goals.
Since the passage of the National Emergencies Act, 27 national emergencies have formally ended, with only four of the 28 emergencies declared by Presidents Obama, Bush and Trump having concluded. The remaining 24, in addition to three of President Clinton’s, as well as President Carter’s 40-year-old emergency, have undergone regular congressional renewal since.
Lessons for the Trump Administration
However, while there are numerous occasions when emergency declarations were used to augment foreign policy, few modern precedents exist for domestic issues, such as building a border wall. Since the president must publicly announce the powers he or she intends to use when announcing the emergency itself, President Trump’s best bets for securing progress lie in a few obscure laws in the U.S. Code.
President Trump’s goals are most effectively bolstered by a law that allows the “reprogramming” of armed forces funding away from civic projects and towards other projects “essential to the national defense.” This law was originally passed as a part of the Water Development Act of 1986, with a focus on the construction of dams and harbors. This can be coupled with another relevant law, which permits the Secretary of Defense, “without regard to any other provision of law,” to begin military construction projects, “not otherwise authorized by law.”
To achieve his end goal of a physical wall along the southern border, President Trump intends to make up the $4.3 billion difference between his requested funding and the money provided in the border security compromise by redirecting appropriations from the Treasury and Defense Departments. This of course contradicts the president’s long-standing campaign promise that “Mexico will pay for the wall.”
For some, this push also seems to contradict the small-government, anti-executive power ethos of the Republican Party, the party of Ronald Reagan, who once said, “As government expands, liberty contracts.” Presidents Reagan and H.W. Bush declared just eleven national emergencies over twelve years – this is President Trump’s fourth in just over two. Public opinion has not been supportive of this course of action either, with 6 in 10 Americans actively disapproving of the decision to use an emergency to fund the wall.
As the border situation continues to escalate, and contests are waged on the floor of Congress and (likely) in the consistently anti-Trump Ninth Circuit Court of Appeals, a precedent is being set in real time. If President Trump’s order stands the constitutional test, it will entitle future presidents to enact their agenda by similar means. If it falls, a conservative-leaning Supreme Court will be faced with the choice of standing up to a Republican president, or confirming a continued empowerment of the executive branch.
Photo via Flickr / Jonathan McIntosh
Jack hails from Cleveland, Ohio, and graduated Magna Cum Laude from Miami University with a BA in English Literature and Media & Culture, where he reestablished a fraternity and ran a film production organization. Jack hopes to utilize his graduate education to help get responsible, intelligent people elected to positions where they can make positive change in their communities.