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President Trump and the Border Emergency Declaration: Why and What's Next?

United States Border Wall with Mexico

President Donald J. Trump on Friday sought to extract victory from the jaws of a budget defeat and turned a mostly unfulfilled request of $5 billion to build the border wall, into an emergency declaration that will presumably net him $6.7 billion from other sources.

This came after Congress passed a spending bill that included only $1.375 billion for about 55 miles of border barriers – not a wall – the same amount that Congress had offered him before the 35-day government shutdown that ended January 25th.

A White House press release indicated the Administration planned to get a total of $8.1 billion – including money newly appropriated by Congress – that would "further the President's effort to secure the Southern Border and protect our country."

The President, weary of another unpopular shutdown, signed the spending bill but used the emergency declaration to seek the money needed to build over 250 miles of wall.

According to the White House, the President intends to use the national emergency and other executive powers to divert $3.6 billion in military construction projects,  $2.5 billion in counterdrug activities funds and $600 million from the forfeiture fund and use it for "additional troops and funding for military construction."

But the emergency announcement created a new political and legal crisis, including questions about the legal limits of Presidential power, the suitability of existing national emergency laws and the impact of the decision on military facilities and law enforcement funds. 

US President Donald Trump inspects border wall prototypes in San Diego, California
US President Donald Trump inspects border wall prototypes in San Diego, California on March 13, 2018.  |  MANDEL NGAN/AFP/Getty Images

Why an emergency declaration?  

The President has the power to declare a national emergency, and it comes from the 1976 National Emergencies Act. 

According to the Federal Register, 58 national emergencies have been declared since the National Emergency Act of 1976 and 31 have been renewed annually and still in effect.
President Barack Obama used his power a total of ten times, and most of them involved blocking the property or freezing the assets of international criminals or rights violators, such as the Somali pirates, top human rights violators in Venezuela or South Sudan leaders promoting civil war. 

President George W. Bush invoked emergency powers after the terrorist attacks of September 11, 2001, and President Bill Clinton blocked the assets of Colombian narco-traffickers who were laundering their money thru American companies. 

No president has used the emergency powers to build an infrastructure project.

International Border Wall Between San Diego and Tijuana Extending into Distant Hills
The border wall between San Diego and Tijuana extending into the distant hills

California has the most to lose

According to Governor Gavin Newsom, "no other state will be as affected as California." Newsom joined Attorney General Xavier Becerra on Friday in announcing the filing of a lawsuit against the presidential move.

"The President plans to shut down and divert funds used by California law enforcement that run counter-narcotic operations and fight drug cartels to build his wall," said Newsom in a statement, adding that the action could also affect funding for the national guard and military installations. "Donald Trump, we´ll see you in court."

Although Congressional aides said it's still unclear what projects may have their funding taken, at least two dozen of a list of Milcon – military construction – are in California.

Among them are electrical upgrades and potable water distribution improvements in Camp Pendleton, airfield security and F-35 landing pads in the Miramar Navy Station and training and instruction facilities in Coronado.

Camp Pendleton
Camp Pendleton

Some legislators feared Trump could also move money around from other accounts, including the Army Corps of Engineers disaster relief funds, but California congressman, John Garamendi, said on Friday that the White House appeared to be backing off from that threat.

"It appears the public efforts to push back against the Trump Administration’s proposal to raid disaster recovery funds to pay for the wall have been successful," Garamendi said to the San José Mercury News.

Reactions and lawsuits

As the Administration argued that the budget agreement was a "border security victory," the responses to his declaration of an emergency at the border included the filing of at least a couple of lawsuits that could delay the declaration for a long time.

Los Angeles-based political analyst Sherry Bebitch Jeffe, a former University of Southern California professor, said that under regular conditions, only Congress has the power to decide how to allocate the federal budget. 

"He's saying, forget what you decided. You put the money here and I want it there," Jeffe said. "It's a power that isn't used frequently, and when it is, it's for issues of grave significance."

Some experts argued that Trump was engaging in Presidential overreach in using emergency powers this way, to address a questionable emergency and bypass Congress. 

"The Constitution assigns Congress the power of the purse, and no prior president has ever tried to use emergency powers to fund a chose project-particularly a permanent, large-scale domestica project such as this, against Congressional will," said Dror Ladin, staff attorney with the American Civil Liberties Union national security project, which announced it was filing a lawsuit against the emergency declaration.

In a joint statement, Senate Democratic Leader Chuck Schumer and Speaker Nancy Pelosi indicated that the declaration was "unlawful" and the crisis "didn't exist." Both promised to "defend our constitutional authorities in the Congress, in the courts, and in the public, using every remedy available."

Congress could end the emergency

According to several experts, Congress doesn't have the power to stop the President from declaring a national emergency but they can take up a joint resolution of termination to end the emergency status (which he, of course, can veto, unless a supermajority passes it). 

According to reports in the New York Times, Senate President Mitch McConnell has warned the President that, under the National Emergencies Act, he will not be able to stop the Senate from considering a resolution if it passes in the House. 

Democrats are in the minority in the upper house, but a few Republican Senators have already expressed their opposition to the emergency powers declaration, particularly because, as Speaker Pelosi warned, "it can later be used by a Democratic President in response to the gun crisis or climate change."

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