(Gray News) – For a state of emergency to take effect, the president must declare a national emergency.
The power to do this comes from the National Emergencies Act of 1976.
The declaration of a national emergency gives the president special powers that he wouldn’t normally have.
These emergency powers are designed to give the president the flexibility to deal with unexpected disasters like a terrorist attack or a massive natural disaster. The type Congress can’t handle quickly enough.
The president’s special powers are contained in more than 100 different laws that have been passed over the years.
But what constitutes a national emergency? The National Emergency Act doesn’t say.
It’s up to the president to decide.
President Donald Trump has said he’s willing to declare a national emergency over security at the southern border with Mexico if he doesn’t get funding for a border wall in a deal to end the partial government shutdown.
“I have the absolute right to declare a national emergency. The lawyers have so advised me,” Trump said Thursday. “I’m not prepared to do that yet, but if I have to, I will. I have no doubt about it. I will.”
For months the president has floated the idea of having the military build the border wall.
Under a state of emergency, he might be able to do just that. The authority could come from Section 2808 of the Title 10 U.S. Code pertaining to military construction.
According to the statute, if the president declares an emergency “that requires use of the armed forces,” the defense secretary “may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.”
The problem for the White House is finding the funds. Money can’t be shifted willy-nilly. They must be dollars that aren’t committed elsewhere.
In the context of a divided Congress and a divisive national debate, a move to declare a national emergency to build a border wall is sure to spark a flood of legal challenges questioning the president's authority.
The issue would likely be settled in the courts.