President Trump declared a national emergency on February 15 in order to build a wall on the southern border “faster.” Through his declaration, the President claimed the ability to re-direct funds previously appropriated by Congress for military construction projects elsewhere, along with forfeiture funds held by the Treasury and Defense Departments. He diverted billions of dollars to fund the building of a physical barrier along parts of the border.
Trump’s use of his emergency powers to circumvent Congress may violate the Constitution’s separation of powers provisions and is an unprecedented use of the 1976 National Emergencies Act (NEA). Passed after President Nixon abused the emergency powers of the Presidency by declaring a national emergency to end a postal workers’ strike, the NEA was designed to limit Presidential emergency powers and establish clearer checks on the Executive Branch. The NEA limited Presidential emergency powers to only those specified in the statute, a total of 136 provisions.
It is widely agreed that President Trump’s emergency declaration is a mechanism to work around the Congressional appropriations process rather than a response to circumstances along the southern border. A number of states, organizations, and individuals are suing in various federal courts to enjoin any effort to implement the declaration.
In addition, Congress could block the President’s usurpation of its power over the purse. Under the NEA, Congress has the power to terminate an emergency declaration through a joint resolution. While a joint resolution initially requires only a simple majority in both houses to pass, the President has the power to veto it. After a veto, Congress would need a 2/3 majority in both houses to terminate the declaration.
Democrats in the House expect to pass a resolution terminating Trump’s emergency declaration in the coming days. By law, the Senate must consider the resolution within 15 days of its passing the House. In the Republican-controlled Senate, however, the fate of the resolution is unclear. Four Republicans would have to join with Senate Democrats for the resolution to attract a majority vote. At least one Republican, Sen. Collins, has already said she will support a “clean” resolution, and seven other Republicans have opposed the declaration without committing to support a joint resolution. It is possible that enough Republicans might join that the joint resolution rejecting Trump’s declaration would pass the Senate.
Despite the possibility of a veto, it is important that Congress take a stand against the President’s overreach. This action would indicate that the President’s abuse of his NEA powers is unacceptable, pose a deterrent to any improper Presidential exercise of the Emergencies Act in the future, and provide support for lawsuits claiming that the President has violated the separation of powers principle of the United States Constitution.
Our representatives – Rep. Don Beyer, Sen. Mark Warner, and Sen. Tim Kaine – have all expressed their opposition to the emergency declaration. But it is important that they know how much it matters to you that they do everything possible to stop the President’s power grab. Email them today and say:
Please vote to reject the President’s unwarranted and dangerous emergency declaration. The President lacks the power to circumvent Congress by spending billions of dollars for an unauthorized purpose.
E-mail Rep. Don Beyer at https://beyer.house.gov/contact/
E-mail Senator Warner at https://www.warner.senate.gov/public/index.cfm?p=ContactPage
E-mail Senator Kaine at https://www.kaine.senate.gov/contact/share-your-opinion