4 Things to Know About Trump’s Ability to Declare an Emergency to Build a Wall

During his prime-time Oval Office address Tuesday night, President Donald Trump left out any reference to declaring a national emergency as a way to build a physical barrier along the southern border. Instead, he focused on reaching a bipartisan deal with congressional Democrats to end the partial government shutdown over the issue.

However, by Wednesday, Trump talked about declaring a national emergency if he couldn’t reach any deal.

“I think we might work a deal, and if we don’t, I may go that route,” Trump told reporters. “I have the absolute right to do [a] national emergency if I want.”

When questioned, he added: “My threshold will be if I can’t make a deal with people that are unreasonable.”

During a White House meeting Wednesday, Trump asked House Speaker Nancy Pelosi, D-Calif., whether she would agree on funding a physical barrier along the southern border if he opened the government. Pelosi said no, and Trump walked out, Republican congressional leaders told reporters.

Declaring a national emergency isn’t rare or unprecedented. It is also subject to checks by Congress under a federal statute. A president typically makes such a declaration amid a natural disaster, public health threat, terrorist attack, or war.

The Trump administration contends the amount of drugs, the presence of criminal gangs, and the humanitarian situation at the southern border constitute a crisis or emergency.

Democrats contend the problems at the border do not constitute a crisis.

So, unlike a flood or a terror attack, a presidential declaration of a national emergency over the border situation would be a political question—which would be unusual.

Here’s four things to know about the process.

1. What Did Previous Presidents Do?

Presidents long have taken emergency actions to use the government to tackle an emergency without Congress, but it wasn’t until the 1970s that Congress passed a law to say not so fast.

President Abraham Lincoln took emergency actions without Congress during the Civil War, which few would dispute was an emergency.

President Woodrow Wilson was the first president to formally proclaim a national emergency. It happened on Feb. 5, 1917, during World War I, according to a 2007 report by the Congressional Research Service.

The goal was to limit the transfer of American ships to the possession of foreign individuals or entities. Wilson used executive authority to establish the United States Shipping Board to oversee water transportation. In March 1921, Congress terminated the board.

President Franklin Roosevelt took executive actions deemed an emergency during the Great Depression and World War II.

President George W. Bush notably declared a national emergency after the 9/11 terrorist attacks on the World Trade Center and Pentagon.

In 2014, after the Russian invasion of Crimea in Ukraine, President Barack Obama signed an executive order declaring a national emergency as a means to freeze U.S. assets of any individual who asserted governmental power in Ukraine without the approval of the Ukraine government.

2. Where Does the Authority Come From?

During the 1970s, Congress became increasingly concerned about the power of the executive branch after the Vietnam War and the Watergate scandal.

In November 1973, the Senate Special Committee on the Termination of the National Emergency, chaired by Sen. Frank Church, D-Idaho, asserted that emergency proclamations “give force to 470 provisions” of U.S. law.

The Senate report states:

These hundreds of statutes delegate to the President extraordinary powers, ordinarily exercised by the Congress, which affect the lives of American citizens in a host of all-encompassing manners. This vast range of powers, taken together, confer enough authority to rule the country without reference to normal Constitutional processes.

Under the powers delegated by these statutes, the President may: seize property; organize and control the means of production; seize commodities; assign military forces abroad; institute martial law; seize and control all transportation and communication; regulate the operation of private enterprise; restrict travel; and, in a plethora of particular ways, control the lives of all American citizens.

In 1976, Congress passed the National Emergencies Act, sponsored by Rep. Peter Rodino, D-N.J. The legislation drew bipartisan support and President Gerald Ford, a Republican, signed it into law.

The new law put a statutory framework in place allowing a president to declare a national emergency, with limitations. Mainly, Congress may terminate the emergency declaration if it has the votes to do so. Also, a president must renew the declaration of an emergency after 180 days.

3. Where Do Conservatives Stand?

Several conservatives have weighed in during recent days about Trump’s possibly declaring a national emergency—pointing to the potential...

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