After a political standoff over President Trump’s proposed wall on the U.S. Southern border resulted in the longest government shutdown in American history – the bar was high for the president to avoid another large scale disruption that was unpopular, even among his own supporters.
To circumvent Congress’ power of the purse, Friday morning President Trump announced his declaration of a National Emergency to assign funds and resources to the wall. He anticipated the imminent legal battle in using that executive power for an issue so divided on political and even pragmatic lines.
“We will have a national emergency, and then we will get sued,” Trump said in predicting the trajectory of his emergency declaration, pointing to the legal battle following the travel ban imposed on some Muslim-majority countries.
Anticipating his declaration will be fought in the District, Circuit, and ultimately the Supreme Court, many are asking whether the president’s declaration is justified and, more importantly, legal under National Emergencies Act. Looking at the act itself – and previous uses of it – the definition of “national emergency” is still murky and constitutionally vague at best.
Can Congress stop a National Emergency declaration?
While Congress does not have authority to block or void a declaration of National Emergency, they do have the power to terminate it after it has taken effect.
According to the same Act that gives the president his authority, Congress can, through a joint resolution of both houses, effectively ‘terminate’ the emergency.
Similar to other joint resolutions passed by Congress, both the House of Representatives and the Senate need to pass identical resolutions or, after passing their own versions, conference to work out any differences and bring the revised version to their respective floors for a yea or nay vote.
The National Emergencies Act also allows for a vote on termination every six months after the declaration takes effect.
Congress has never been faced with terminating a president’s emergency declaration, but their authority to terminate is in place for situations of sharp political dispute over the use of national emergency status, or when it is believed the perceived threat to national security has expired.
Will Congress stop Trump’s National Emergency declaration?
Not long after the announcement, Speaker of the House Nancy Pelosi and House Minority Leader Chuck Schumer blasted Trump’s emergency declaration, say Congress will ‘defend our constitutional authorities’
— Nancy Pelosi (@SpeakerPelosi) February 15, 2019
Later in the day, the House Judiciary Committee sent a formal letter to Mr. Trump, announcing an immediate investigation into the president’s declaration, citing a “reckless disregard for the separation of powers and your own responsibilities under our constitutional system.”
Though Trump has had support from some Republicans for his border wall – even through the highly unpopular government shutdown over the federal budget – many prominent lawmakers have spoken explicitly against the president using a National Emergency declaration to bypass congress.
Senator Susan Collins, Republican of Maine told the New York Times, “I don’t believe that the National Emergencies Act contemplated a president repurposing billions of dollars outside the normal appropriations process. I also believe it will be challenged in court and is of dubious constitutionality.”
Other Republican lawmakers, such as Senators Patrick J. Toomey (R-PA) and Rand Paul (R-KY), have expressed the President’s declaration runs against “the separation of powers outlined in the Constitution.”
But, even if the House and the Senate pick up enough bipartisan votes to terminate the President’s declaration, any joint resolution they pass faces a huge obstacle: the veto.
Just like any bill or act passed by Congress, the President has the authority to veto its passing. If that occurs, the president’s veto can only be overridden with a two-thirds majority of lawmakers.
And while there may be enough Republicans to narrowly pass a termination of the national emergency, either on principal – or constitutional grounds – rallying more members of the President’s party to join in a direct standoff with the president himself is a much steeper hill to climb.