Last Friday, President Trump made big headlines by declaring the situation on the southern border of the United States to be a national emergency, sending the country into uncertain legal and political battles as he seeks to fulfill his campaign promise. He made the designation in an attempt to redirect taxpayer money from other accounts and use it to erect more than 230 miles of barriers along the U.S.-Mexico border. Trump’s announcement capped a two-month period that included the longest government shutdown in U.S. history, at 35 days. After further negotiations with Democrats failed to lead to an agreement on funding for his planned Border Wall, Trump decided against another government shutdown, likely due to fears of increased political backlash. Instead, Trump will test the separation of powers with his Emergency Declaration, as he sidesteps Congress despite Republicans urging restraint. During his news conference, Trump offered little evidence to back up his assertion that there was a crisis on the border requiring an extraordinary response. “We’re talking about an invasion of our country with drugs, with human traffickers, with all types of criminals and gangs,” he said. He used the word “invasion” seven times. He later admitted the emergency declaration “wasn’t urgent” but rather expedient, as it would help him build a wall more quickly than Congress would allow. “I didn’t need to do this, but I’d rather do it much faster,” he said.
This inevitably leads to the question if whether something “not urgent” can constitute a “National Emergency”. According to a report put together by the Brennan Center for Justice, both the president and Congress can declare a national emergency whenever they see fit. Despite the alarming label, no broadly agreed-upon “emergency” is actually required. Trump administration’s argument about the dangers at the southern border — for example, the number of illegal immigrants has decreased over the last two decades and, according to the State Department’s Bureau of Counterterrorism, there is “no credible information that any member of a terrorist group has traveled through Mexico to gain access to the United States” — the president nonetheless can rule it an emergency, The New York Times explains. Under the National Emergencies Act, passed in 1976, Congress has the power to end a state of emergency declared by a president. But it has not done so in 40 years, according to the Brennan Center’s report. It seems especially unlikely that Congress would terminate the potential border-related national emergency, as doing so would require a joint resolution and a signature from the president.
Yesterday, a coalition of 16 states filed suit on Monday to block President Donald Trump’s effort to fund his border wall by declaring a national emergency, calling it a “flagrant disregard of fundamental separation of powers principles.” The complaint, filed in the U.S. District Court for Northern California, is the third in a string of legal challenges already launched against Trump’s use of emergency powers. The states behind Monday’s lawsuit argued that Trump engaged in an “unlawful scheme” when he “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,” according to a copy of the complaint obtained by Politico. In addition to arguing that “there is no objective basis” for a national emergency given that unlawful entries to the U.S. have tanked to a 45-year low, the lawsuit argues that states would suffer from losing millions of dollars to fund drug enforcement and forfeiting money tabbed for military construction projects to the detriment of state economies. It seems likely a long series of legal battles will continue for months if not years over Trump’s use of Emergency powers, and the issue will likely be resolved in the Supreme Court.