Trump’s predecessors used act for national emergencies
Democrats now oppose wall they once supported
President Bush flexed the National Emergencies Act in the days after the 2001 terrorist attacks, President Carter used it during the Iran hostage crisis and President Obama tapped it to handle the swine flu pandemic in 2009.
Now it’s President Trump who is eyeing the 1976 law, figuring it could be his ticket out of the shutdown showdown and could allow him to build his promised border wall without specific funding approval from Congress.
The White House said no decision had been made in the run-up to Mr. Trump’s speech on border security, but the president was clearly eyeing the powers as a viable escape route.
Congressional Democrats and liberal activists warned of a constitutional crisis and promised that they would fight any emergency declaration in the courts and on Capitol Hill.
Political analysts said Democrats would struggle to muster the votes to stop Mr. Trump in Congress, and legal analysts said they would be hard-pressed to win with judges.
“At the end of the day, the law allows him to declare what a national emergency is,” said William Cowden, a former assistant U.S. attorney in the District of Columbia. “Whether the wall eventually gets built or not, it gives him an out to go back in and reopen government.”
Even the Democratic chairman of the House Armed Services Committee said over the weekend that the law appears to give the president emergency powers.
The National Emergencies Act emerged after Watergate and was meant to be a restraint on the runaway powers of the presidency by codifying and limiting what had been an expansive number of declarations of emergency presidential action.
The law requires the president to make the case for the emergency and gives Congress a means of trying to overturn his decision by passing a resolution of disapproval.
In the border wall case, Mr. Trump’s goal is to get the military involved, tapping unspent Pentagon funding to redirect toward construction.
The Defense Department said last month that it had studied the issue and concluded that it had legal authority to build a border fence, particularly if it was deemed critical to a mission against drug smuggling.
The Congressional Research Service identified tens of millions of dollars over the past two decades that the Pentagon spent on wall construction as part of drug interdiction accounts.
Trump critics say he could be snared by semantics.
The law allows construction of roads and fences — while the president, until recently, insisted he was building a wall. He has since changed his rhetoric, but judges may not be sympathetic.
Congressional Democrats said Mr. Trump would struggle to prove that the border situation is severe enough to justify his use of the military.
“There is no invasion. There is no clear
Congressional Democratic leaders have embraced the goal of increased border security in their fight with President Trump, proposing measures to strengthen U.S. ports of entry — but omitting the barrier they supported five years ago.
Those designated border crossings account for roughly 2.5 percent of the 2,000-mile U.S.-Mexico border.
The proposal also represents a small fraction of the security measures, including hundreds of miles of border fence, that garnered broad Democratic support a little more than five years ago before Mr. Trump entered the picture.
Democrats now are limiting the security measures they back to sending more customs officials and deploying new technology at the 48 ports of entry or border crossings where cars and trucks line up to seek legal entry into the U.S.
The effort likely would help combat the flow of opioids and other narcotics into the U.S., helping achieve a top priority for the Trump administration.
The proposals, however, don’t include the fence demanded by Mr. Trump to help secure areas of the border that stretch across vast desert wilderness.
House Speaker Nancy Pelosi outlined the Democrats’ vision of border security in a televised response to Mr. Trump’s prime-time address about what he called a “humanitarian and security crisis” on the border.
Mrs. Pelosi said everyone agrees on the need to secure the border.
“We can build the infrastructure and roads at our ports of entry. We can install new technology to scan cars and trucks for drugs coming into our nation. and present danger, as the president would try to convey to the American people, to scare them and to justify actions otherwise not justified,” said House Majority Leader Steny H. Hoyer, Maryland Democrat.
Democrats say arrests of border jumpers are down dramatically from two decades ago, though they have surged this year, with families and children constituting an overwhelming number of those testing the border.
Mr. Trump also warned about drugs, gang members and potential terrorists coming across the border.
He has said repeatedly that he views the situation as an emergency.
Mr. Hoyer, though, compared a Trump emergency declaration to a dictator’s declaration of martial law.
He said a lawsuit is possible but was waiting to see what the president would do.
One hurdle for Mr. Trump would be shifting funds from Pentagon programs to build the wall. Such decisions could cost him support of Republicans. We can hire the personnel we need to facilitate trade and immigration at the border. We can fund more innovation to detect unauthorized crossings,” she said.
Congressional Democrats often cite drones as prime examples of the innovative technologies available for the rest of the border, but no specific plans have been laid out.
Mrs. Pelosi has called border walls “immoral” and refused to give an inch in negotiations over Mr. Trump’s demand for $5.7 billion for new barriers, Border Patrol agents, immigration judges and other tools to stem illegal immigration.
Rep. Matt Cartwright of Pennsylvania, co-chairman of the House Democratic Policy and Communications Committee, said it would be foolish to build barriers in the desert.
“The first thing to focus on are the ports of entry where all the drugs are coming through or the tunnels,” he said on Fox News. “This is why we’ve increased Customs and Border Protection because this is how you stop the entry of this stuff — not by building walls in places where goats don’t even climb and people don’t travel.”
Mr. Trump bucked attempts to limit the border security debate to ports of entry.
“They don’t come in through checkpoints; they come through areas where you have hundreds of miles without walls and without barrier or without strong fences,” Mr. Trump said at the Capitol.
The president was on Capitol Hill to rally support among Senate Republicans as a partial government shutdown approached three weeks.
He said Republicans remained unified on border security.
The bollard-style corrugated steel border fence now advocated by Mr.
“There’s not enough money in DOD the way it is, so anything along that line will have to be justified and, like I say, we’ve worked very, very hard, the president’s worked hard to get the appropriate number of dollars into the Department of Defense,” said Sen. Mike Rounds, South Dakota Republican.
He predicted that Mr. Trump would have to survive a legal battle.
Mr. Cowden said the initial outcome of that fight would depend on which judges get the case, but he expects the courts eventually would back Mr. Trump.
“I think what they’re likely to do is say the president has this authority to declare a national emergency. If Congress doesn’t like it, there’s a mechanism in there for Congress to override it,” he said.
The override mechanism is built into the law in a 1980s update that created a process for both the House and Senate to pass a resolution disapproving of an emergency declaration.
House Democrats, who control the Trump once garnered broad support among Democrats.
In 2013, every Senate Democrat voted for a bipartisan immigration reform bill that included nearly $8 billion for 350 more miles of border fence.
Senate Democrats voting yes included Minority Leader Charles E. Schumer, Minority Whip Richard J. Durbin, and Sens. Dianne Feinstein, Tim Kaine, Kirsten Gillibrand, Mazie K. Hirono, Amy Klobuchar, Robert Menendez, Richard Blumenthal and Sherrod Brown.
The bill also would have allocated about $30 billion to hire 20,000 more Border Patrol agents. Helping secure the Democrats’ support, the legislation entailed broad changes to immigration laws and offered a 13-year path to citizenship for the approximately 11 million illegal immigrants living in the U.S. at the time.
The current debate does not include pro-immigration sweeteners. The White House team included the added scanners and manpower at ports of entry that Democrats support.
White House deputy press secretary Hogan Gidley said the Democrats’ support for the 2013 bill and a 2006 bill for a border fence showed that their opposition to a border wall was “partisan petty politics.”
“The president has now put forth a proposal that includes a strategy to protect the American people with technology at our ports of entry to counter narcotics and weapons coming into this country, detention beds for people who get into this country illegally, humanitarian needs and to allow people to claim asylum in their country of origin. But that includes a steel barrier,” he said.
Democrats remained united in opposition to a border wall.
Dave Boyer contributed to this report. lower chamber of Congress, are likely to muster the votes, but Republicans have a majority in the Senate.
The president can veto any measure passed in Congress, meaning it would take a two-thirds vote of both chambers to stop him.
Perhaps a bigger threat to Mr. Trump’s emergency powers is landownership. Even a national emergency can’t surmount private property rights, and much of the land where fencing would be built in Texas is privately owned.
Trying to use eminent domain powers would invite a flurry of litigation that could derail construction for years. Lawsuits are still pending over construction dating back to the last major barrier-building spree in the Secure Fence Act of 2006.
“If he attempts to seize personal land in violation of the Constitution, Trump will need to do so in Texas — a state not known for its fondness for federal government overreach,” the Center for American Progress said in a memo.