• Lindsey Kim

The President's Emergency Powers

Updated: Aug 24, 2020

On February 15, President Trump signed a declaration of national emergency over the Mexican-American border. This was the result of a gradual compiling of events: first, Trump’s declarations during the 2016 election to build a border wall, then his efforts to secure funding for his wall. Finally, the culmination of the momentum towards wall-building resulted in a national emergency. What is a national emergency, and what does it mean? What does this event entail for Congress and the President?


The formal meaning of a “national emergency” was defined in 1976, with the passage of the National Emergency Act. To activate emergency powers, a President must sign a document declaring he will have access to those powers, and publish the document in the Federal Register. After this, the President’s emergency powers—defined in a collection of numerous laws Congress has passed in anticipation of a theoretical emergency—are free to be used.


Historically, others have utilized this policy to declare an emergency, most prominently after the 9/11 attacks and the 2009 H1N1 pandemic; there have been 59 total national emergencies declared since 1976. 31 of these are still in effect. Trump’s justification for the passage of the act is based mostly in drugs, gangs, and immigration, but presidents in the past have also declared emergencies for different reasons, like for a hostage crisis, for war, or for declaring sanctions. The oldest emergency still in effect is from 1979, passed by former President Carter as a reaction to the Iran hostage crisis, which blocks Iranian government property. President Trump has actually declared three national emergencies during his presidency other than the most current: one in 2017, “The National Emergency With Respect to Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption,” and two in 2018: “The National Emergency With Respect to Imposing Certain Sanctions in the Event of Foreign Interference in a United States Election” and “The National Emergency With Respect to Blocking Property of Certain Persons Contributing to the Situation in Nicaragua.” Trump’s fourth and most publicized emergency is the most criticized.


Upon the announcement of Trump’s emergency powers, some expressed their concern that he was not using the powers correctly—or constitutionally should not be able to do so. This has resulted in the activation of policies that follow the declaration of emergency powers: Congress may pass legislation approved by a supermajority that the President cannot veto. Any other legislation to take away a President’s national emergency powers without a supermajority can be vetoed by the President; this is the way that emergency power veto laws have worked since the Supreme Court ruled a simple majority veto to the President’s powers unconstitutional. Any emergency after one year is rendered null unless renewed by the President. Following this established set of procedures, the House of Representatives has passed a resolution to terminate Trump’s declaration in a vote on the 26th of February that resulted in votes 245 for the bill, 182 against. The resolution passed to the Senate for the second vote: though the House has a Democrat majority and the Senate has a Republican majority, Senate Majority Leader Mitch McConnell predicted that the Senate would probably pass this resolution forward. Though not technically “bipartisan,” this divisive resolution has caused thirteen Congressmen in the House to join the Democrat pro vote. The Senate vote on the resolution to dispute President Trump’s emergency powers occurred on March 14, and the Senate saw almost a quarter of its Republicans join Democrats to vote on the affirmative for the bill, including Mitt Romney, Marco Rubio, Roy Blunt, and Susan Collins. The vote went 59-41 and passed, but President Trump will surely veto the bill. Congress will have to start the veto process again, this time amassing the veto supermajority in order to overturn Trump’s veto. If then it does not pass, Congressmen will have to wait six months before bringing another resolution concerning vetoes to the table.


The opposition to Trump’s actions are a citation of constitutionality: as stated by the Democrat House Speaker Pelosi, Trump’s act has violated Congress’s “power of the purse.” This is a viable claim, as former President Obama was sued in court in 2014 for spending billions of dollars without congressional approval. The suing Republicans won.


When President Trump declared his emergency powers activated, he technically was referring to financial powers. In the case of Trump, his emergency powers were meant for the building of a border wall between the American and Mexican border—a wall which has been promised to supporters since his 2016 campaign—and which is a plan that has undergone many obstacles. The first major upheaval in D.C. over Trump’s wall was a reaction to his government shutdown. The shutdown was because of the failure of Congress to pass the appropriate funding bills to allocate money to the departments: the proposed spending bills at the time were repeatedly rejected because of President Trump’s $5 billion allocation towards the Mexican border wall. Finally, a compromise was reached which ended the government shutdown with a record duration of 35 days. The compromise outlined $1.3 billion for a 55-mile steel fence. President Trump has expressed his intent to secure over $3 billion for the wall, perhaps more.


The criticism of Trump’s move eventually reached a tipping point that resulted in action by 16 states (which includes California and New York) to challenge Trump’s declaration in court on February 18. The lawsuit states “Contrary to the will of Congress, the president has used the pretext of a manufactured ‘crisis’ of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction and law enforcement initiatives toward building a wall on the United States-Mexico border.” President Trump is confident of a ruling in his favor, and California et al. v. Trump et al. remains to be an event in progress. Meanwhile, Congress will continue its plan to pass a veto bill for the President’s declaration.

 

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