Instead of merely seeking to block the President’s declaration of an „emergency“ at the southern border, Congress should instead significantly amend the
Earlier this week, Congress began the process of voting on a motion to disapprove President Trump’s declaration of a “national emergency” on the southern border as a means of getting funding for his border wall that was denied to him by Congress in the recent budget talks, a declaration that the President himself has admitted is entirely unnecessary. This declaration is being made pursuant to the National Emergencies Act, a law passed in 1976 that gives President broad authority to declare national emergencies based on conditions overseas or here in the United States. In the intervening years, Presidents from President Carter to President Trump have used this authority to declare emergencies related to a variety of events ranging from natural disasters and terrorist attacks like the September 11th attacks to international events such as the Iran Hostage Crisis and the general War On Terror that has existed since the September 11th attacks. Many of these emergency declarations remain in effect to this day even though the events that prompted them occurred decades ago. For the most part, Presidents have used these emergency declarations to make it easier to move resources or money into areas where it was needed quickly, but as a general rule the authority to declare an “emergency” is so broad that a President can do any number of things if he or she finds that there is an “emergency” situation.
In response to Trump’s declaration, we’ve seen responses in the legal and political worlds. Late last week, lawsuits were filed by California and fifteen other states, another filed by Texas landowners, a third filed by various environmental groups, and a fourth filed by the ACLU. and more lawsuits are likely to be filed. Additionally, Congress has begun the process provided in the statute to challenge the emergency declaration and it is expected that the House and Senate will vote on a disapproval resolution later this week, although it is unlikely that such a resolution will receive sufficient support to survive a Presidential veto. At that point, of course, it will be up to the Courts to deal with the matter. However, Law Professor Josh Blackman argues at Lawfare that, rather than voting on a resolution regarding the President’s declaration of a “national emergency” over his border wall, Congress ought to be looking at the legislation that makes what President Trump is doing possible.
The NEA can be improved. As a threshold matter, Congress failed to define the term “emergency.” Currently, it means whatever the president wants it to mean. While it is tempting to legislate in advance what types of dire circumstances would constitute an emergency, this approach would be a mistake.
