WASHINGTON – When President Donald Trump declares a national emergency to free up funding for his border wall he will follow a long line of presidents dating back to George Washington who have relied on emergency authority to achieve a goal.
But experts say national emergencies have rarely been used in the way Trump intends.
Trump is expected to declare an emergency as early as Friday as a mechanism to unlock pots of federal money he can then use to build portions of a border barrier, a central promise of his 2016 campaign. He will also sign a bipartisan bill that sets aside $1.375 billion for barriers, far short of the $5.7 billion he has demanded.
Presidential emergencies often lead to bitter partisan disputes and occasionally wind up in court, but they are relatively common. The United States is already subject to more than 30 national emergencies, including one signed in 1979 by President Jimmy Carter days after the Iranian hostage crisis began.
“They’re declared for all kinds of things,” said Kim Lane Scheppele, a professor at Princeton University’s Center for Human Values. “They’re absolutely common, which is why nobody blinks an eye about the whole thing – and then you get a case like this.”
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Since 1976, when Congress passed the National Emergencies Act, presidents have declared at least 58 states of emergency – not counting disaster declarations for weather events, according to the nonpartisan Brennan Center for Justice. Dozens remain in effect, extended by subsequent presidents.
The Militia Acts of 1792 gave Washington authority to take over state militias during the Whiskey Rebellion. In perhaps the best-known use of emergency powers from history, President Abraham Lincoln established a blockade on the ports of Southern states and suspended habeas corpus without congressional approval.
In modern times, presidents have far more frequently used emergency powers to impose sanctions. They have sometimes used them to seize property and call up the National Guard.
After the terrorist attacks in 2001, President George W. Bush signed an order giving him broad powers. A subsequent executive order, signed in November of that year, activated the same law the White House may be considering now for the wall – a provision that allowed the president to redirect military construction money for other purposes.
In 2009, President Barack Obama declared a state of national emergency for the H1N1 swine flu pandemic. That emergency, which expired a year later, allowed for waivers of some Medicare and Medicaid regulations – for example, permitting hospitals to screen or treat an infectious illness off-site – and to waive medical privacy laws.
Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program, said few would have disputed that a state of emergency existed after the 9/11 attacks. The president’s emergency powers, she said, were conceived as a way to give the president the ability to act when Congress didn’t have time to do so.
In the case of immigration or a border wall, Goitein said, Congress had plenty of time but chose not to act.
“This is a situation in which the powers are being used to get around the express will of Congress,” she said. “That is particularly problematic.”
Trump has signed three executive orders that relied in part on the National Emergencies Act, including an order in September that gave him power to slap sanctions on any foreign country that interferes in a U.S. election. That action was taken after criticism that Trump did not do enough to confront Russian meddling in the 2016 presidential election.
Experts said the idea of using a national emergency to build the president’s promised border wall would be novel, and both Democrats and outside groups have threatened to sue. White House press secretary Sarah Sanders said Thursday that the administration was prepared for those challenges if they come.
Under the National Emergencies Act, the president must cite the specific emergency powers he is activating. According to the non-partisan Congressional Research Service, there are hundreds of “provisions of federal law delegating to the executive extraordinary authority in time of national emergency.”
Congress can terminate a declared emergency, but it requires a joint resolution – a high hurdle. Democrats in power at the House of Representatives would have to convince Republicans who control the Senate to join them in blocking Trump’s move. Then they would have to get a signature from the president, the same person who declared the emergency in the first place, or override his veto.
The law requires Congress to “meet to consider a vote” on each emergency every six months. In 43 years of the National Emergencies Act, Congress has never done so.
Aside from the legal questions, there are politics in play, too.
Any member of Congress can introduce a resolution to cancel a presidential emergency, a move House Democrats said Thursday they are preparing to do. That would force a vote on the issue, putting Republicans in an uncomfortable position. Polls indicate the a majority of Americans oppose Trump using a national for a border wall.
But a majority of Republicans support it.
After Hurricane Katrina devastated the Gulf Coast in 2005, Bush declared a national emergency to suspend prevailing wage laws on federal contracts to rebuild the region. When then-Rep. George Miller, a California Democrat, introduced a resolution to stop that emergency, Bush capitulated before Congress ever held a vote.
Contributing: Gregory Korte