Trump has threatened to call a national emergency to bypass Congress to fund his wall – but is it legal, and would it work?

This article is more than 1 year old

This article is more than 1 year old

Over the past week, Donald Trump has repeatedly threatened to declare a national emergency if he does not get funding for his US-Mexico border wall.

As the president set off for Texas on a visit to the border, he made a series of typically garbled statements on border security, but the message was clear: if Democrats don’t agree to give Trump $5bn for the wall as part of a deal to end the partial government shutdown, he could invoke emergency powers.

So what is a national emergency?

It is typically described as a crisis, such as a national security issue, which threatens the safety of the country. The National Emergencies Act of 1976 allows presidents to redirect government money without approval from Congress. The act also allows a president to circumnavigate some laws while the emergency is addressed.

If Trump does declare a national emergency he would have to specify exactly which powers he intends to use, according to the Brennan Center for Justice.

How would Trump use the national emergency powers?

He has threatened to declare the national emergency to build a wall along a stretch of the US-Mexico border, and has provided no further detail. Currently the president and Democratic leaders are at a standoff over funding for the wall, which has shut down 25% of the government for 20 days. More than 800,000 federal workers have either gone without pay or been put on unpaid leave.

Trump says he will not sign a congressional budget proposal to reopen the government unless it includes $5bn for the wall.

In his first televised address to the nation from the Oval Office this week, Trump gave a speech full of false claims and misleading statistics to paint a portrait of a crisis at the US-Mexico border, even as the rate of illegal immigration has steadily fallen over the years and in 2018 reached its lowest point in more than a decade.

The president says the wall is needed to prevent drug trafficking and undocumented immigration, but most drug trafficking and migration into the US occurs at legal points of entry – not across unwalled parts of the border.

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Democrats say the wall is a waste of money, and have accused Trump of using rhetoric “full of misinformation and even malice”.

Where would the money come from?

Probably from funding set aside for military construction projects – such as building army barracks and other improvements to bases used by the armed forces.

Bruce Ackerman, a Yale law professor, wrote in the New York Times that Trump would probably use money from the military budget for the wall, and use military personnel to build it.

Would declaring a national emergency work?

Possibly not.

There is widespread doubt over whether the situation at the border can be classified as an emergency. That means any declaration could become mired in months-long court proceedings. Both Democrats and Republicans have expressed skepticism about whether it would work.

The House armed services committee’s Democratic chairman, Adam Smith, told ABC that the president “would be wide open to a court challenge saying, where’s the emergency?’” The Republican senator John Thune echoed that on CNN.

Congress would also be able to pass a resolution blocking the emergency declaration.

Has a national emergency been declared before?

Yes. There are actually 30 national emergencies currently in effect. But the national emergencies have not been used for what some would say is a politically motivated wall.

George W Bush declared a national emergency after the 9/11 attacks, and Barack Obama did the same during the swine flu outbreak in 2009.

The majority of the other emergencies suspend or withhold money from foreign nationals or countries.