Today, President Trump signed a federal spending bill to fund the government through the end of the fiscal year, which includes additional border security spending. As part of this measure, the President signed into an effect a national emergency declaration, which allows him to reprioritize funding for border security to address the growing national security and humanitarian crisis at our Southern Border. There are some misconceptions about what a national emergency is and what the effects of such a declaration. Below is a helpful clarification of these issues:
What is a “national emergency” and can the President issue one?
In 1976, Congress passed the National Emergencies Act, which permits the president to pronounce a national emergency when he considers it appropriate. The act offers no specific definition of “emergency” and allows a president to declare one entirely at his or her discretion. By declaring a national emergency, the president avails himself or herself of dozens of specialized laws. Some of these powers have funds the president otherwise could not access.
Under current law, emergency powers lapse within a year unless the president renews them. A national emergency can be re-declared indefinitely, and, in practice, that is done frequently. There have been 58 pronounced under the National Emergencies Act, of which 31 are still in effect. [President Bill Clinton declared emergencies 17 times, George W. Bush 12, and Barack Obama 13].
Congress can attempt to override and terminate the President’s national emergency, but it would ultimately require a veto-proof 2/3 supermajority in both chambers of Congress to achieve this. If congressional Democrats fail in the endeavor, which is entirely likely, they will likely turn to the federal courts for relief--perhaps heading up the Supreme Court of the United States.
- List of current national emergency in effect, compiled by CNN.
- The text of the Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States is available here.
How is the President able to shift funding to Southern Border?
Congress already appropriated funding for drug interdiction efforts and military construction reserves in the federal budget. In addition, the Treasury has a drug money forfeiture fund. The President is reprioritizing spending with an aimed at the Southern Border to achieve the goals of this funding as outlined by Congress.
As the Washington Post outlines, sources of funding that will be reprioritized to the Southern Border include:
In addition to $1.375 billion included in the bill passed by Congress, Trump plans to draw money from a mixture of drug forfeiture funds, military projects and other accounts.
Trump is eyeing about $600 million from a Treasury Department drug forfeiture fund and $2.5 billion from a Defense Department drug interdiction program, according to officials.
In addition, the president wants to use $3.6 billion in military construction funds to help build his new border barriers.
Of the different pots of money, White House officials believe only a military construction account requires a national emergency designation.
The White House will not use any money that had been designated as disaster assistance for Puerto Rico or Texas, as some had speculated, [Acting Chief of Staff Mick] Mulvaney said.
What happens next?
As the President predicted during his announcement and is often the case currently, litigation. California and New York have already promised to challenge the emergency declaration, and other Democrat-controlled states and liberal organizations will surely join them.