The President will use the emergency declaration to divert US$3.6-billion from military construction projects to build the wall. He will use other executive powers to draw on US$2.5-billion in funding for anti-drug programs and US$600-million from an asset forfeiture fund.Doug Mills/The New York Times News Service
U.S. President Donald Trump has declared a national emergency to get the funds to build a wall on the Mexican border, setting the stage for a protracted battle over the heart of his nationalistic agenda.
The move has unleashed a political firestorm, with critics accusing Mr. Trump of launching an unconstitutional power grab and vowing a slew of court challenges. It is also certain to energize the President’s base by fulfilling the foundational pledge of his campaign.
Mr. Trump turned to the emergency declaration after a two-month standoff with Congress. The President demanded US$5.7-billion for the wall, but Democratic legislators would agree to only US$1.375-billion.
“We’re going to be signing today, and registering, a national emergency,” Mr. Trump told a news conference in the White House Rose Garden Friday morning. “It’s a great thing to do because we have an invasion of drugs, invasion of gangs, invasion of people and it’s unacceptable.”
Data from U.S. Customs and Border Protection, however, show apprehensions of unauthorized immigrants on the southern border are down 75 per cent since 2000, and more than 80 per cent of illicit drugs are smuggled through regular border crossings, not the open expanses of desert where Mr. Trump wants to build the wall.
The President dismissed these numbers Friday as “all a lie.” When one reporter asked him to share any other data he has that contradict it, Mr. Trump could not produce any.
He also praised China for executing drug dealers; described conservative pundit Ann Coulter as “off the reservation” for criticizing him regarding the wall; and blamed congressional Republicans for failing to secure wall funding when the party controlled both houses of Congress (“they didn’t step up”).
The President will use the emergency declaration to divert US$3.6-billion from military construction projects. He will use other executive powers to draw on US$2.5-billion in funding for anti-drug programs and US$600-million from an asset forfeiture fund. Combined with the money approved by Congress, this will total just less than US$8.1-billion for the wall.
During the campaign, Mr. Trump promised Mexico would pay for the wall. Mexico, however, has refused, meaning U.S. taxpayers will foot the bill.
Mr. Trump seemed to concede that an emergency declaration was not actually necessary for getting the wall built, but was simply a way to speed things up. “I can do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster,” he said.
The comment was immediately seized upon by the President’s opponents. House Speaker Nancy Pelosi tweeted video of the line under the hashtag #FakeTrumpEmergency. “[His] unlawful declaration over a crisis that does not exist does great violence to our Constitution,” she wrote.
California Governor Gavin Newsom announced that his state would launch a legal challenge. “President Trump is manufacturing a crisis and declaring a made-up ‘national emergency’ in order to seize power,” he tweeted. “See you in court.”
The National Emergencies Act of 1976 does not define what exactly constitutes an emergency, but it has typically been invoked to deal with acute threats from hostile powers, such as the 1979 hostage taking in Iran and the Sept. 11, 2001 terrorist attacks.
The President’s emergency powers have been previously challenged in court, in a 1952 case that predates the Act. Then-president Harry Truman tried to nationalize the country’s steel mills during a labour dispute to ensure the military would continue to have access to the material it needed to make weapons for the Korean War. The Supreme Court ruled against Mr. Truman. Justice Robert Jackson wrote that a president’s “power is at its lowest ebb” when he takes actions that oppose the will of Congress.
Andrew Boyle, a lawyer with the Brennan Center at New York University, said this legal precedent could work against Mr. Trump because a court could find that his order is an attempt to defy Congress.
“This is an absolute abuse of emergency powers,” he said. “It’s not a true emergency. The President is trying to get around the system of checks and balances.”
Legal experts say a court case could also focus more narrowly on the argument that the wall does not constitute military construction and is therefore not eligible for the military funds Mr. Trump wants to use.
“I don’t think there would be much of a legal challenge if he used that statute to, say, build parts of a wall on a military base,” said Stephen Vladeck, a constitutional law expert at the University of Texas. “But if he’s using that basically to buy private property and build a wall, it’s easy to see how it could get challenged.”
Mr. Trump’s use of executive power has been challenged before: In 2017, several courts issued injunctions against his attempts to bar citizens of several Muslim-majority countries from entering the United States. The Supreme Court overturned the injunctions after the White House rewrote the ban to narrow it.
The President predicted Friday his wall order will follow a similar trajectory.
“We will have a national emergency, and we will then be sued … and we will possibly get a bad ruling, and then we’ll get another bad ruling, and then we’ll end up in the Supreme Court,” he said. “And hopefully, we’ll get a fair shake.”