The Washington Post
By Deanna Paul and Colby Itkowitz
February 15, 2019
Lexile: 1100L-1200L
After
teasing it for months, President Trump is officially declaring the
[U.S.]-Mexico border a “national emergency,” which will allow him to
circumvent Congress’s constitutional powers to control spending and
divert federal funds toward his much ballyhooed border wall.
His
decision to do so, after not getting the money he wanted from Congress
to put toward construction of his wall, has drawn immense criticism as
an overreach of executive power. So, is it? Can he do this?
Let’s review the basic facts of what it means for a president to declare a national emergency.
What is a national emergency?
In
1976, Congress passed the National Emergencies Act, which permits the
president to pronounce a national emergency when he considers it
appropriate. The act offers no specific definition of “emergency” and
allows a president to declare one entirely at his or her discretion.
By
declaring a national emergency, the president avails himself or herself
of dozens of specialized laws. Some of these powers have funds the
president otherwise could not access.
Under current law,
emergency powers lapse within a year unless the president renews them. A
national emergency can be re-declared indefinitely, and, in practice,
that is done frequently. There have been 58 pronounced under the
National Emergencies Act, of which 31 are still in effect.
When have they been declared in the past?
Presidents
have declared national emergencies since World War II. As The
Washington Post reported, President Bill Clinton declared emergencies 17
times, George W. Bush 12 and Barack Obama 13.
The vast majority
have been economic sanctions against foreign actors whose activities
pose a national threat, according to Elizabeth Goitein, co-director of
the Brennan Center for Justice’s Liberty and National Security Program. A
handful of declarations have involved noneconomic crises:
Clinton
declared a national emergency during the 1996 Cuba embargo, preventing
U.S. ships or aircraft from entering Cuban territory without
authorization. Obama declared a national emergency during the H1N1 swine
flu epidemic in 2009 to activate disaster plans to set up proper
patient treatment.
Bush declared a national emergency after the terrorist attacks of Sept. 11, 2001; the order is still in effect.
Is a national emergency the same thing as an executive order?
In
general, national emergencies have been declared through executive
orders. An executive order is a command issued by the president that
carries the force of law. The power is authorized, in part, by Article
II of the U.S. Constitution.
Executive orders direct federal
agencies on how to spend available resources. Thousands have been
created by past presidents, covering topics as varied as the duties of
the commander in chief.
The U.S. Supreme Court has only rarely
held an executive order invalid, including one issued by Harry S. Truman
in 1952 that seized the country’s steel mills during the Korean War,
and another from Clinton in 1995 involving workers on strike.
Executive
orders do not create new law or allocate additional funding, which is
where Trump has run up against congressional hurdles.
Following
his inauguration, Trump issued an executive order making construction of
a barrier wall across the southwest U.S. border a federal priority. The
wall could not be built unless Congress provided him with the funds.
How does a president declare a national emergency?
A
president must issue a written and signed declaration that specifies
the specific emergency powers he plans to rely on and invoke.
“Unlike
other executive orders, one that declares a national emergency unlocks
the powers contained in more than 100 other laws,” Goitein told The
Post.
Of the vast statutory powers Trump would avail himself of,
Goitein said two could arguably allow him to build the border wall with
Defense Department funding. These federal statutes make available funds
set aside for military construction projects or repurpose money
originally dedicated to civil projects supporting the military and
national defense.
What happens once a national emergency is declared?
Even
though there aren’t many limits on a president’s ability to declare an
emergency, it does not create complete freedom to act.
Anyone
directly affected by the order can challenge it in court, which Goitein
said will almost certainly happen in this case. Congress can also draft a
concurrent resolution to terminate the state of emergency, leading to a
somewhat novel act. Ordinarily, congressional resolutions support a
president’s declaration of a national emergency.
House Speaker
Nancy Pelosi (D-Calif.) is expected to bring up a “joint resolution of
termination” in the House. Doing so would force Senate Majority Mitch
McConnell (R-Ky.) to also bring up the resolution in the GOP-majority
Senate, putting his members in a difficult position.
The House Democrats can also join an outside lawsuit or choose to sue on their own.
Does Congress have enough votes to terminate the emergency declaration?
Like
any legislation passed by Congress, the president could veto the
resolution unless it has received supermajority support (two-thirds in
each chamber). Many Republicans have been critical of this approach by
Trump, mainly because they see it as a slippery slope for a future
Democratic president using the power to advance his or her policy goals.
But it’s unclear whether there’s enough of them to vote against the
president (and his base) to override a veto.
Questions Using Close Reading and Critical Thinking:
- The first section of an article should answer the questions “Who?”, “What?”, “When?”, and “Where?” Identify the four Ws of this article. (Note: The rest of the news article provides details on the why and/or how.)
- Does this article have any bias? Why or why not?
- Reread the opening paragraph. Using context clues, define the word circumvent. What words or phrases in the article did you use to help you understand the meaning of the word?
- Name some of the national emergencies declared by past presidents.
- What is the difference between a national emergency and an executive order? Using your explanation of the difference, explain why President Trump declared a national emergency instead of signing an executive order.
- Why is it expected that Congress will draft a resolution to terminate the state of emergency that President Trump declared last week? Use specific details from the article in your explanation.
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