When a president threatens to exercise the power to declare a national emergency, our system of checks and balances faces a crucial test. With President Trump threatening such a declaration in order to build his proposed physical border wall, that test could be an important one that could quickly implicate your right to privacy and a transparent government.

Like the Constitution, statutory powers do not justify a presidential declaration of emergency powers to build a proposed border wall.

EFF has long tangled with governmental actions rooted in presidential power. From mass telephone records collection to tapping the Internet backbone, and from Internet metadata collection to biometric tracking and social media monitoring, claims of national crisis have often enabled digital policies that have undermined civil liberties. Those policies quickly spread far beyond their initial justification. We have also seen presidential authorities misused to avoid the legislative process—and even used to try to intimidate courts and prevent them from doing their job to protect our rights.

So when the President threatens to use those same emergency authorities to try paying for a border wall after Congress has refused, we watch closely. And so should you.

National Emergencies and the Constitution

The tension created by the constitutional separation of powers among the president, Congress, and the courts during times of national emergency is not new.

President Lincoln famously suspended habeas corpus during the American Civil War. Later, President Roosevelt authorized the detention and internment of 100,000 Japanese-Americans, a profound constitutional offense that ranks among our country’s most severe violations of our founding commitments. Finally, President Truman sought to use emergency powers to nationalize a steel mill to supply the armed forces during their “police action” in Korea.

The last of these prompted a lawsuit that has served as the touchstone for consideration of these questions ever since. The case is known as the Steel Seizure Cases or Youngstown Sheet & Tube Co. v. Sawyer (1952). In Youngstown, the Court ruled against President Truman, holding that he did not have the power to seize a privately owned steel mill.

Justice Jackson’s concurring opinion in Youngstown set forth the analytical framework that has come to define this area of law. It explains that executive power stands at its lowest ebb when confronting an explicit act of Congress denying the purported authority, as President Truman did when attempting to seize steel mills. In contrast, executive power attains maximal reach when authorized (either explicitly or by implication) by Congress, such as when Congress has authorized military action. In between, the executive branch has flexible authority within a “zone of twilight” on issues that Congress has not addressed.

Flash forward to today. Congress has not appropriated funds to build the wall requested by the President. Given that Congress is the branch of government with the exclusive power to tax and spend, the most obvious way to characterize this refusal is as a rejection of the President’s request—placing the President at his “lowest ebb” of power under the Youngstown analysis.

Alternatively, Congress’ silence could be read to indicate that it hasn’t addressed the issue. Congress regularly grants the President an annual sum of funding for “discretionary” spending purposes, from which the administration could claim funds have already been provided and that his acts fall within the “zone of twilight.” On the other hand, funds provided in discretionary budgets are designed to fill budgetary gaps of federal agencies in their regular operations. Construing congressional silence as assent would therefore require a stretch.

The choice between these two possibilities will likely be the crux of any legal challenge to the President’s attempt to direct funds absent congressional appropriation. Because Congress exclusively wields the power to appropriate funds and declined to do so here, the courts should overturn any unilateral executive branch action, as they did in Youngstown.

Statutory Powers to Declare Presidential Emergencies

In addition to his constitutional powers, several statutory powers could conceivable invoked by the President. Let's look at two we think are more likely:

First, Congress enacted the National Emergencies Act in 1976. The Act has been invoked dozens of times in the years since, usually to prohibit transactions with foreign powers engaged in violent conflict with U.S. military forces.

On the one hand, the National Emergencies Act does not specify any particular circumstances that must be satisfied before a president can invoke its extraordinary powers. On the other hand, the legislative history preceding its passage reveals Congress’ intent to limit executive fiat by terminating previous open-ended declarations of emergency and providing mechanisms for Congress to limit future declarations.

Until either the Senate or House passes a resolution to terminate a national emergency, however, the Act requires relatively little of a president invoking its authority. It requires the President to periodically report to Congress about any funds it spends related to a declaration of emergency.

This requirement for reporting could be read to insinuate presidential authority to spend funds in the event of a bona fide emergency. Courts, however, should scrutinize the legitimacy of any claimed emergency, especially when Congress has affirmatively declined to appropriate the full sum sought by the President.

Second, the Robert T. Stafford Disaster Relief and Emergency Assistance Act provides a more well-tested authority for a president to spend funds without congressional appropriation. It, however, has been used only in responses to natural disasters, to enable temporary responses to unforeseen events. It has never justified spending funds that Congress has refused to appropriate in response to a previous executive branch request. It also requires a Governor of an affected state to request an emergency declaration from the president, which has yet to happen along the U.S. southern border. In fact, one Governor has done the opposite.

Like the Constitution, statutory powers do not justify a presidential declaration of emergency powers to build a proposed border wall. Given Congress’ refusal to appropriate funds for the president’s proposal, the courts should guard the separation of powers, and not defer to a potential presidential declaration of emergency.

Emergency Powers Have Enabled Secrecy and Mass Surveillance

Letting a supposed national emergency serve as a pretense for extraordinary executive powers outside of congressional approval has proven to be very dangerous for digital civil liberties. As noted above, emergencies have already served as the basis for creating several mass surveillance programs that EFF has worked hard to stop. These same claims have been used to justify tracking immigrants and other marginalized people, tracking that quickly spread far beyond its original justification.

Beyond the powers themselves, the secrecy that has come along with those efforts threatens our Constitutional checks & balances by truncating legislative oversight and judicial review. The decade we’ve spent trying to get a public federal court to consider the government’s unconstitutional mass surveillance programs has informed our perspective on that problem.

Put simply, there is no national emergency exception to the Constitution, or to the key statutes that constrain executive branch authority here. Similarly, national emergencies have never legitimately justified the continual monitoring of hundreds of millions of Americans without a shred of suspicion.

As the debate over border policy continues, we urge both the political branches and the judiciary to refuse to allow the false pretenses about a national emergency to rip holes into our system of checks and balances. We know all too well that such holes can too easily be used to justify a further expansion of both surveillance and secrecy.