President Donald Trump, frustrated that Congress won’t cave in and give him more than $5.7 billion to build a portion of a border wall he says is essential to protect the country, is threatening to declare a state of national emergency and build it without congressional approval. But his statement about that on Wednesday makes a mockery of the very concept.
Congress in 1974 gave the president the authority to declare national emergencies to activate special power during a crisis, but provided no definition of what constitutes a crisis. It’s instructive, however, to realize that there are 31 national emergencies in effect today, dating back to 1979. The last three were declared by Trump himself since taking office.
Why have we heard little about them? Because virtually all of them involve sanctions against foreign governments or individuals involved in conflicts around the globe. In 1979, President Jimmy Carter declared an emergency blocking Iranian government property. Other declarations since then include “Blocking Property of Certain Persons and Prohibiting the Export of Certain Goods to Syria” (George W. Bush), “Blocking Property of Certain Persons Contributing to the Situation in Ukraine” (Barack Obama), and “Blocking Property of Certain Persons Contributing to the Situation in Nicaragua” (Donald Trump).
None of them involved spending billions not appropriated by Congress, and all are clearly related to the security interests of the United States. The U.S. Constitution says only Congress may appropriate money, and it’s congressional Democrats’ refusal to authorize $5.7 billion to construct a portion of border wall that Trump might seek to get around.
Various experts have weighed in on the question of whether the president could simply declare an emergency and proceed to build the wall. It seems clear that he could try, because the National Emergencies Act of 1974 does not define a qualifying emergency. But without an appropriation, Trump would have to redirect the $5.7 billion from money already authorized for some other purpose. And the move would be certain to generate a legal challenge.
More to the point, however, is this: If the situation on the border is so dire that immediate action is necessary — and there is little evidence that it is — then Trump already should have declared a state of emergency and moved ahead. Instead, he’s just threatening to do so, in the apparent hope that Congress will eventually bow to his will.
Speaking to reporters Wednesday, the president said, “My threshold (for an emergency declaration) would be if I can’t make a deal with people that are unreasonable” about the partial government shutdown.
A valid declaration of national emergency is not a bargaining chip to be used at the negotiating table. Neither are the 800,000 federal employees going without paychecks.