What is a national emergency - and what powers will it give Donald Trump?
US president will invoke 1976 Act to access federal funding for his border wall without congressional approval
President Donald Trump is set to declare a “national emergency” at the US-Mexico border in order to invoke special powers to fund his proposed $5.7bn (£4.44bn) border wall.
Following weeks of deadlock, lawmakers from both parties agreed a deal earlier this week that reportedly includes $1.375bn (£1.07bn) for the controversial project, in order to avert a second government shutdown.
However, the White House confirmed yesterday that although Trump will sign the spending Bill, he will also try to put the nation on emergency status - which would allow him to bypass Congress to get more cash for his wall.
Subscribe to The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.
Sign up for The Week's Free Newsletters
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
So, what are the powers available to a president during a “national emergency” - and why are even fellow Republican Party members panicking over Trump’s declaration?
What is a national emergency?
The first ever national emergency was declared by President Woodrow Wilson in 1917 over a shortage of maritime transport affecting US exports, but the status was not formalised until almost 60 years later.
The 1976 National Emergencies Act (NEA) gives the executive special powers to act without congressional approval in order to counter a specific threat.
However, declaring a national emergency “does not provide any specific emergency authority on its own, but relies on emergency authorities provided in other statutes”, says the Association of State and Territorial Health Officials.
The president must specify the emergency statues being invoked to address the named threat.
A draft of Trump’s proclamation seen by CNN indicates that he will cite a provision in the US Code that “would give the president authority to pull from military construction funds and civil works projects, like infrastructure repair projects”, to fund the wall.
Although the term might sound like a signal of extreme peril, US presidents have declared a “national emergency” on 58 occasions since the introduction of the NEA.
The status expires after one year, unless it is prematurely overturned - either by a joint resolution of Congress with presidential approval or by a veto-proof two-thirds majority - or extended for another year by the president in office.
A total of 31 national emergencies are currently in effect. The oldest was declared by then-president Jimmy Carter in 1979 in response to the Iran hostage crisis, and orders a freeze on all Iranian assets in the US.
The most recent, enacted in November of last year, puts a hold on US property belonging to “certain persons contributing to the situation in Nicaragua”.
What makes Trump’s declaration different?
Unsurprisingly, “Democrats came out forcefully against the move”, says Politico. Opposition lawmakers are expected to launch a legal challenge, arguing that the situation on the Mexico border does not constitute an emergency.
In a more unexpected response, Republican lawmakers have also been “publicly urging the president against such a drastic step”.
White House insiders fear that declaring a national emergency to achieve a political goal “will set a dangerous precedent, allowing a future Democratic president to draw on broad executive powers to take action on anything from gun violence to climate change”, the news site reports.
Susan Collins, a Republican senator from Maine, said that Trump’s decision to declare a national emergency at the border was a “mistake”.
“The National Emergencies Act was contemplated to apply to natural disasters or catastrophic events such as the attacks on our country on 9/11,” Collins said in a statement.
“For the president to use it to re-purpose billions of dollars, that Congress has appropriated for other purposes that has previously signed into law, strikes me as undermining the appropriations process, the will of Congress and being of dubious constitutionality.”
Sign up for Today's Best Articles in your inbox
A free daily email with the biggest news stories of the day – and the best features from TheWeek.com
-
4 ways to give back this holiday season
The Explainer If your budget is feeling squeezed, remember that money is not the only way you can be generous around the holidays
By Becca Stanek, The Week US Published
-
4 tips for hosting an ecofriendly Thanksgiving
The Week Recommends Coming together for the holidays typically produces a ton of waste, but with proper preparation, you can have an environmentally friendly gathering.
By Theara Coleman, The Week US Published
-
Jussie Smollet conviction overturned on appeal
Speed Read The Illinois Supreme Court overturned the actor's conviction on charges of staging a racist and homophobic attack against himself in 2019
By Peter Weber, The Week US Published
-
Judge reopens Trump challenge in secrets case
Speed Read Aileen Cannon continues to delay and complicate the classified documents case
By Rafi Schwartz, The Week US Published
-
Trump and his lawyer Alina Habba have a rough day in defamation court
Speed Read Trump's audible grousing as E. Jean Carroll testified earned him a warning he could be thrown out of court, and Habba showed she 'doesn't know what the hell she's doing'
By Peter Weber, The Week US Published
-
E. Jean Carroll seeks further damages from Trump over CNN remarks
Speed Read
By Catherine Garcia Published
-
E. Jean Carroll may sue Trump over 'foul' CNN remarks
Speed Read
By Catherine Garcia Published
-
Judge: Grand jurors in Georgia Trump probe must tread lightly, but can discuss final report
Speed Read
By Catherine Garcia Published
-
4 Oath Keepers found guilty of seditious conspiracy
Speed Read
By Catherine Garcia Published
-
US Republicans push to keep strict Covid border laws
Speed Read A judge ruled that the controversial Title 42 restrictions on asylum seekers should be scrapped
By Richard Windsor Published
-
Judge: Trump signed legal documents he knew contained false voter fraud numbers
Speed Read
By Catherine Garcia Published