Earlier this month, Sen. Lindsey Graham, R-S.C., predicted that President Donald Trump would eventually declare an emergency order to fund a border wall. “It seems to me that (the president) is going to have to go it alone,” Graham said.
TOP LEGAL NEWS OF THE WEEK
Border wall debate turns to legality of use of emergency powers
On Feb. 15, the president made it official. Hours earlier, Congress approved a funding package that includes $1.375 billion for 55 miles of new fencing along the border, funding that falls short of the $5.7 billion he sought for 234 miles of steel walls. Under the emergency declaration, the president indicated he would redirect additional money from other sources to have as much as $8 billion for border security — enough to complete the wall.
Such a presidential declaration of a state of emergency is not unprecedented. The National Emergencies Act of 1976 allows the president to gain expanded authority by declaring a national emergency.
The authority has been used periodically since then for a variety of reasons. President George W. Bush, for instance, invoked emergency powers after the 9/11 attacks; and in 2009, President Barack Obama declared an emergency giving authorities and hospitals extra powers to combat the H1N1 flu virus.
However, emergency powers can be stopped by Congress and the courts. But in 1983, the U.S. Supreme Court ruled congressional action is subject to a presidential veto, which requires a two-thirds vote of both the House and Senate to override.
During the Korean War in 1952, in a 6-3 decision, the U.S. Supreme Court blocked President Harry Truman’s attempt to nationalize the steel industry during a labor dispute.
In a concurring opinion, Justice Robert Jackson put forth a three-part test related to the overreach of presidential power relied upon by courts today. Jackson said the president’s powers were at their height when he had direct or implied authorization from Congress to act; at their middle ground or “a zone of twilight” when acting without either a congressional grant or denial of authority; and “at its lowest ebb” when a president acts against the expressed wishes of Congress.
On Feb. 15, President Trump predicted the road ahead. “I expect to be sued,” he said. “I think we will be very successful in court.”
Related links:
- State of the Union address (White House prepared text)
- National Emergencies Act (50 USC Ch. 34)
- Congressional Research Service report on national emergency powers (updated 2007)
- ABA Journal coverage of 2019 ABA Midyear Meeting resolutions on shutdown, diverting funds for wall
- Youngstown Sheet & Tube Co. v. Sawyer (1952) decision by U.S. Supreme Court
- The Post and Courier (Charleston, S.C.) article on Sen. Lindsay Graham discussing border wall