Can Congress Block a National Emergency?

President Donald Trump announced on February 15, 2019, that he was declaring a national emergency in order to bypass Congress and secure additional funds for a wall on the southern border. Majority Leader Mitch McConnell said on the Senate Floor on February 14 that the president told him he would sign a bipartisan border security bill, and issue the emergency at the same time. Congress has approved the bill and sent it to the president’s desk.

President Trump held off on issuing one during the 35-day partial government shutdown. On January 25, 2019, he and congressional lawmakers agreed to pass a clean continuing resolution to reopen the government, without including funding for a wall. A bipartisan committee, with members from the House and Senate, had until February 15 to reach a compromise on border security that the president would sign. The president signaled he would sign the proposal, which includes $1.375 billion for barrier funding, to avoid another shutdown. But it’s far less than the $5.7 billion he repeatedly requested.

Congress has the power to overturn a national emergency but can’t directly block the president from declaring it in the first place. The National Emergencies Act of 1976 established that Congress has the authority to terminate a national emergency. But the progress can be lengthy and requires approval from both the House and the Senate.

The judicial branch can also review whether there is just cause for a national emergency. Rep. Adam Smith, the chairman of the House Armed Services Committee, said on ABC’s “This Week” that while President Trump has the authority, he would be “wide open to a court challenge, saying ‘where is the emergency?'”

Here’s what you need to know.


The National Emergencies Act Does Not Specify What Constitutes a National Emergency But Specified That Congress Can End It With a Concurrent Resolution

President Trump is correct in stating that he has the authority to declare a national emergency. Congress has the power to end it, albeit via a lengthy and difficult process. The National Emergencies Act of 1976 includes the following language:

“Provides that any national emergency declared by the President in accordance with this title shall terminate if (1) Congress terminates the emergency by concurrent resolution; or (2) the President issues a proclamation terminating the emergency.”

The House and the Senate must come together to override a president’s decision to issue a national emergency. The tool to do so, called a concurrent resolution, is defined by the Senate as such: “A legislative measure, designated “S. Con. Res.” and numbered consecutively upon introduction, generally employed to address the sentiments of both chambers, to deal with issues or matters affecting both houses, such as a concurrent budget resolution, or to create a temporary joint committee.”

If Congress passed a concurrent resolution, it goes to the president’s desk for his signature. The president has the power to veto it, which Congress could then override.

The law does not specify what constitutes a national emergency. But the president is required to explain to Congress how he intends to use that power. Here is that language:

“When the President declares a national emergency, no powers made available by statute for use in the event of an emergency shall become operative unless and until the President specifies the specific provisions of law under which he proposes that he, or other officers will act.”


Congressional Research Service: A National Emergency Does Not Suspend the Constitution

The Congressional Research Service fully explained the power of the president to invoke a national emergency in a 2007 report. (You can read that report in full here). In the summary, researchers explained that a national emergency does not mean that the Constitution can be violated.

“The President of the United States has available certain powers that may be exercised in the event that the nation is threatened by crisis, exigency, or emergency circumstances (other than natural disasters, war, or near-war situations). Such powers may be stated explicitly or implied by the Constitution, assumed by the Chief Executive to be permissible constitutionally, or inferred from or specified by statute. Through legislation, Congress has made a great many delegations of authority in this regard over the past 200 years.

There are, however, limits and restraints upon the President in his exercise of emergency powers. With the exception of the habeas corpus clause, the Constitution makes no allowance for the suspension of any of its provisions during a national emergency. Disputes over the constitutionality or legality of the exercise of emergency powers are judicially reviewable. Indeed, both the judiciary and Congress, as co-equal branches, can restrain the executive regarding emergency powers. So can public opinion. Furthermore, since 1976, the President has been subject to certain procedural formalities in utilizing some statutorily delegated emergency authority.”

The Congressional Research Service mentioned in the report that the president can seize property under a national emergency. One of the issues of building a wall is that private citizens own property where the barrier would be constructed. The 5th Amendment allows the government to essentially force property owners to sell as long as there is “just compensation.” This process could prompt lengthy court battles and appeals, but it is legal.

“Some of these authorities, deriving from the Constitution or statutory law, are continuously available to the President with little or no qualification. Others — statutory delegations from Congress — exist on a stand-by basis and remain dormant until the President formally declares a national emergency. These delegations or grants of power authorize the President to meet the problems of governing effectively in times of crisis. Under the powers delegated by such 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 variety of ways, control the lives of United States citizens. Furthermore, Congress may modify, rescind, or render dormant such delegated emergency authority.”


President Trump Could Declare an ‘Immigration Emergency’

President Trump could cite the Immigration and Nationality Act in ordering a national emergency. One of the provisions of the act was to establish an Immigration Emergency.

This type of emergency can be enacted if there is a sudden massive influx of immigrants that overwhelms the government’s ability to handle them all. Here is the legal language:

“Immigration emergency means an actual or imminent influx of aliens which either is of such magnitude or exhibits such other characteristics that effective administration of the immigration laws of the United States is beyond the existing capabilities of the Immigration and Naturalization Service (“INS”) in the affected area or areas. Characteristics of an influx of aliens, other than magnitude, which may be considered in determining whether an immigration emergency exists include: the likelihood of continued growth in the magnitude of the influx; an apparent connection between the influx and increases in criminal activity; the actual or imminent imposition of unusual and overwhelming demands on law enforcement agencies; and other similar characteristics.”

As pointed out by USA Today, this declaration alone would not give President Trump the necessary funds needed to construct a wall. The Immigration Emergency Fund has an annual budget of only $20 million.

According to the Pew Research Center, the number of undocumented immigrants entering the United States has dropped significantly over the past decade.

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