Can Trump Declare A 'National Emergency' To Build The Border Wall? What You Should Know

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He's vowed to keep the government closed as long as it takes to secure funding for a wall along the U.S.-Mexico border.

Now, as the partial government shutdown enters its third week, President Donald Trump is hinting at a different approach: declaring a national emergency.


In recent days, Trump has said he may call a national emergency in an effort to get funds for a border wall without consent from Congress.

"We can call a national emergency because of the security of our country," Trump said Friday during a news conference at the White House. "We can call a national emergency and build it very quickly. But if we can do it through a negotiated process, we're giving it a shot."

He did not offer any details.

But would declaring a national emergency get Trump funding for the border wall he has promised his supporters since early in his campaign?

Here are some answers:

What's considered a national emergency?

That can be widely debated.

Presidents have called national emergencies in response to an array of events — terrorist attacks, cyber attacks, hostage situations. But the National Emergencies Act of 1976 does not specify what constitutes an "emergency."

For months, critics have assailed the Trump administration, saying it is trying to create the appearance of a security crisis at the U.S.-Mexico border.

In arguing that a wall is needed, administration officials have, among other things, said that nearly 4,000 known or suspected terrorists were prevented from entering the U.S. in 2017. That number, however, counts stops made by Department of Homeland Security across the world, mainly at airports and not the southern border.

Can Trump declare a national emergency?

Yes.

Legal experts say the act gives the president the power to declare a national emergency. But the act does not require presidents to prove a crisis exists to declare an emergency — it's at their sole discretion.

Congress can terminate a declared emergency, but it requires a two-thirds majority in both chambers, according to Loyola law professor Jessica A. Levinson.

Could Trump use government funds to build a wall during a national emergency?

It's possible, but would likely be challenged in court, say legal experts.

Should he declare a national emergency, Trump would not have free-floating powers, said Kim Lane Scheppele, a legal scholar and professor at Princeton University's Center for Human Values. A president "can only make use of specific powers that Congress has put into law to be used precisely when the president declares an emergency," she said.

When a president declares a national emergency, scores of extraordinary laws become available. The Brennan Center for Justice lists 136 special provisions.

"Once he declares an emergency, he must specify which emergency powers he is using — and he's limited to those already in the law," Scheppele said.

One provision says that after an emergency declaration, the "Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces."

Scheppele said if Trump "continues to make the case that the wall is necessary to prevent terrorists from entering the U.S., then he may be able to make the case that building a wall has a military purpose and he has a freer hand."

"Trump might test it and wait for his decision to be challenged by Congress or in the courts," she said.

What have members of Congress said about Trump's threats to declare a national emergency?

Democrats, who control the House, remain steadfast in their opposition to Trump's demand for $5.7 billion to build a wall, and they have expressed outrage at the notion that he would declare a state of emergency to circumvent Congress, which has authority over budgetary matters.

Sen. Jack Reed (D-R.I.), ranking member of the Armed Services Committee, said the idea "that President Trump is considering declaring a phony national emergency as a pretext to take billions of dollars away from our troops and defense priorities in order to pay for his wall should alarm all Americans."

"Declaring a trumped-up national emergency in order to skirt Congressional approval is wrong," Reed said in a statement. "And our troops and taxpayers should not bear the burden of a broken, preposterous campaign promise."

Senate Minority Whip Richard J. Durbin (D-Ill.) on Sunday also warned of a legal challenge if Trump uses a national emergency declaration to pay for a wall.

"I can just tell you, I don't know what he's basing this on, but he's faced so many lawsuits when he ignores the law and ignores tradition and precedent and just goes forward without any concern," Durbin said on CBS' "Face the Nation."

"He'll face a challenge, I'm sure, if he oversteps what the law requires when it comes to his responsibility as commander in chief," Durbin added.

Levinson said those who could have legal standing to sue could include members of the military or other groups affected by the provisions.

Jonathan Turley, a law professor at George Washington University, agrees that the provisions Trump invokes would likely be challenged in court.

But, Turley said, "the court fight could give Trump an exit ramp from the current government shutdown."

"He could simply blame the courts while insisting that he did act in fulfillment of his campaign pledges," Turley said.

Have other presidents issued national emergencies?

Yes, usually in times of major crises facing the country. National emergency declarations are not uncommon for the U.S. and sometimes go unnoticed.

Currently there are more than two dozen active national emergencies in the country.

President Carter declared a national emergency in 1979 related to the Iran hostage crisis; that state of emergency is still in effect. President George W. Bush declared a state of emergency after the Sept. 11 terrorist attacks; it also remains in effect.

In 2015, President Obama declared a national emergency, citing "increasing prevalence and severity of malicious cyber-enabled activities originating from, or directed by persons located, in whole or in substantial part, outside the United States constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States."

Presidents must renew national emergencies annually because the statute lets emergencies automatically expire after one year.

Turley said the problem with presidential emergencies is "not how to declare one but how to end one."

"No one wants to declare an emergency over and suffer the political consequences," he said. "Thus we have national emergency declarations governing Iranian property, weapons of mass destruction … and a host of other matters."

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©2019 Los Angeles Times. Distributed by Tribune Content Agency, LLC.

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NAVAL BASE SAN DIEGO — A Navy SEAL sniper on Wednesday contradicted earlier testimony of fellow SEALs who claimed he had fired warning shots to scare away civilian non-combatants before Chief Eddie Gallagher shot them during their 2017 deployment to Mosul, and said he would not want to deploy again with one of the prosecution's star witnesses.

Special Operator 1st Class Joshua Graffam originally invoked his Fifth Amendment privilege before Navy Judge Capt. Aaron Rugh gave him immunity in order to compel his testimony.

Graffam testified that Gallagher was essentially justified in the shooting of a man he is accused of unlawfully targeting, stating that "based off everything i had seen so far ... in my opinion, they were two shitheads moving from one side of the road to the other."

Spotting for Gallagher in the tower that day, Graffam said, he called out the target to him and he fired. He said the man was hit in the upper torso and ran away.

Graffam, who joined the Navy in 2010 and has been assigned to SEAL Team 7's Alpha Platoon since September 2015, deployed alongside Gallagher to Mosul in 2017, occasionally acting as a spotter for Gallagher when the SEALs were tasked with providing sniper support for Iraqi forces from two towers east of the Tigris River.

Another SEAL, Special Warfare Operator 1st Class Dalton Tolbert, had previously testified under direct examination by prosecutors that, while stationed in the south tower of a bombed-out building in June 2017, he had observed Gallagher shoot and kill an elderly civilian.

"He ran north to south across the road," Tolbert testified on Friday. "That's when I saw the red mark on his back and I saw him fall for the first time. Blood started to pool and I knew it was a square hit in the back." Over the radio, he said he heard Gallagher tell the other snipers, "you guys missed him but I got him."

Former SO1 Dylan Dille, who was also in the south tower that day, testified last week that he watched an old man die from a sniper shot on Father's Day. He said the date stuck out in his mind because he thought the man was probably a father.

Later that day, after the mission, Graffam said he spoke with Dille about the shooting and they disagreed about the circumstances. Dille, he said, believed the man was a noncombatant.

"I, on the other hand, was confident that the right shot was taken," Graffam said, although he said later under cross-examination that the man was unarmed. Dille previously testified that the SEALs were authorized to shoot unarmed personnel if they first received signals intelligence or other targeting information.

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Graffam described the man as a male between 40 and 50 years old wearing black clothing, giving him the impression of an ISIS fighter who was moving in a "tactical" manner. He testified that he did not see anything like Dille had described.

Graffam further testified that he didn't see Gallagher take any shots that he shouldn't have on that day or any other.

Although Graffam said he did not hear of allegations that Gallagher had stabbed a wounded ISIS fighter on deployment, he testified that he started to hear rumblings in early 2018. Chief Craig Miller, he said, asked him at one point whether he would "cooperate" with others in reporting him.

When asked whether he would like to serve with Miller again in a SEAL platoon, Graffam said, "I don't feel as confident about it." A member of the jury later asked him why he'd feel uncomfortable deploying with Miller and he responded, "I just wouldn't."

Graffam said he would serve with Gallagher again if given the chance.

Under cross examination by prosecutors, Graffam said he couldn't say whether there were warning shots fired that day, though Dille and Tolbert both said happened. "There were multiple shots throughout the day," Graffam said.

Prosecutors also asked him about his previous statements to NCIS, in which Graffam said of Miller that "he has good character" and was "a good guy." Graffam confirmed he said just that.

Defense attorney Tim Parlatore, however, said those statements were back in January and "a lot had happened since then." Parlatore said Graffam had also said at the time that Gallagher was a good leader.

"That part remains unchanged, correct?" Parlatore asked.

"Yes," Graffam said.

The defense is expected to call more witnesses in the case, which continues on Thursday.

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