WASHINGTON – President Donald Trump set off a heated debate when he told reporters recently he may declare a national emergency to free up funding for his proposed border wall, reopening a controversy that predates the republic itself.
While presidential emergencies often lead to bitter partisan disputes and occasionally wind up in court, they are also relatively common. The United States is already subject to more than 30 national emergencies, dating back to one signed in 1979 by President Jimmy Carter days after the Iranian hostage crisis.
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. Most remain in effect, extended by subsequent presidents.
The use of emergency powers is older than the country itself. Between 1775 and 1781, the Continental Congress approved a series of emergency acts dealing with the Revolutionary War, according to the nonpartisan Congressional Research Service.
The Militia Acts of 1792 gave President George 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 used executive powers to impose sanctions, seize property and call up the National Guard.
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.
Trump has already signed three executive orders that relied in part on the National Emergencies Act, including an order in September that gave him power to slap new sanctions on any foreign country that interferes in a U.S. election. That action was signed in response to criticism that Trump had not done enough to confront Russian meddling in the 2016 presidential election.
But experts have said the idea of using a national emergency to build the president’s promised border wall would be novel, and some Democrats have already threatened to sue.
“We can call a national emergency and build it very quickly,” Trump said last week of the wall. “But if we can do it through a negotiated process, we are giving that a shot.”
Under the National Emergencies Act, the president must cite the specific emergency powers he is activating under existing statutes. According to the 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. House Democrats, now in power, would have to convince Senate Republicans, who still control their chamber, 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.
More: President Trump could declare a national emergency. But would that get him funds for a wall?
More: Networks agree to air Democrats’ response to Trump address on border ‘crisis’
Contributing: Gregory Korte and William Cummings