President Donald Trump plans to sign a bipartisan budget deal and then declare a national emergency to obtain money for his proposed wall on the U.S.-Mexico border, Senate Majority Leader Mitch McConnell said Thursday.
McConnell's Senate floor announcement came the day before funding for parts of the federal government was set to lapse. Congressional leaders from both parties reached a deal to avoid a shutdown earlier in the week, but it was unclear if Trump would sign it. The president has demanded $5.7 billion for his border wall, but the deal in question includes just $1.375 billion for the wall.
Trump "has indicated he's prepared to sign the bill," McConnell said. "He will also be issuing a national emergency declaration at the same time. And I've indicated to him that I'm going to support the national emergency declaration."
The White House quickly confirmed the news. "President Trump will sign the government funding bill, and as he has stated before, he will also take other executive action—including a national emergency—to ensure we stop the national security and humanitarian crisis at the border," Press Secretary Sarah Huckabee Sanders said in a statement, according to The New York Times.
Trump's use of a national emergency declaration to secure border wall funding should trouble anyone who understands and appreciates separation of powers. According to a 2007 report from the Congressional Research Service (CRS), the 1976 National Emergencies Act entitles the president to "statutory delegations from Congress" that let him "seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens."
We don't know what limits there are on a president's ability to declare a national emergency. There is definitely potential for civil liberties abuses, particularly in regard to eminent domain, which is the process by which the government forces a property owner to sell. David Bier, an immigration policy analyst for the Cato Institute, told Reason last month his "biggest concern" is that Trump will use the declaration of a national emergency to "seize private property for the wall without following the normal, albeit, minimal procedures."
Bier has previously noted for Reason that the federal government owns less than a third of the land on the southern border. The rest belongs to other entities, including states, Native American tribes, and private individuals. Most of the border land in Texas, in fact, is private property. In order for the wall to get built, the federal government will need to confiscate quite a bit of privately owned land.
What's less clear is whether Trump can seize land without congressional authorization. Title 42 of the U.S. Code says that when a federal program or project (like the border wall) requires an individual to relocate, that individual must be given "a reasonable opportunity to relocate to a comparable replacement dwelling." But there are three exceptions, including "a national emergency declared by the President."
Trump, for his part, has already suggested using the "military version of eminent domain" to build the wall. And federal law does allow for military department secretaries to seize land "in the interest of national defense." But in the face of one or more inevitable legal challenges, Trump would still have to convince the courts that building a wall is necessary for national defense.
It remains to be seen if Trump can legally seize land for the wall. The same goes for whether declaring a national emergency will help him secure border wall funding. Trump has a few options regarding the latter, as noted by Margaret Taylor, a governance fellow at the Brookings Institute and a senior editor at Lawfare.
Title 10 of the U.S. Code, for instance, says that when the president declares a national emergency "that requires use of the armed forces," the secretary of defense can authorize "military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces." The necessary money would come from un-obligated funds that have already been allocated for military construction.
Title 33 of the U.S. Code applies to similar situations: namely, a national emergency declaration "that requires use of the armed forces." It says that in such cases, the secretary of the Army can "terminate or defer the construction, operation, maintenance, or repair of any Department of the Army civil works project that he deems not essential to the national defense," then "apply the resources of the Department of the Army's civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense."
Trump has already deployed troops to the southern border, which could come in quite handy.
But does the situation at the border really require military intervention, and thus warrant a national emergency declaration allowing Trump to bypass Congress and build the wall? Short answer: no.
"There is absolutely and without question no crisis at our southern border," Kristie De Peña, director of immigration and senior counsel at the Niskanen Center, told Reason last month. Politicians should "stop framing this as if it's some sort of national security crisis," she added.
Peña also points to the fact that net migration flows to the U.S. are going down. As Reason's Shikha Dalmia explained in January, net migration flows between the U.S. and Mexico have actually reversed in recent years, meaning more Mexicans are attempting to leave the U.S. than are attempting to enter.
"The facts could not possibly justify a state of emergency declaration," said Bier, who noted that Border Patrol agents are actually apprehending less people now than they were in the early 2000s. "I cannot imagine what case the president could make that the challenges this administration faces are unique or unprecedented."
But just because Trump shouldn't declare a national emergency doesn't mean he's legally in the wrong. "It will probably hold up in court," Peña said of Trump's declaration. "There's a strong case to be made that presidents need to have the authority to declare a national emergency. And that's been upheld in court a number of times."
Bier expressed similar sentiments, predicting that just as the Supreme Court upheld Trump's travel ban on a handful of largely Muslim-majority countries, it will uphold his use of a national emergency declaration to secure border wall funds.
Bier put it bluntly: "My belief is that the president can get away with doing almost anything he wants in the name of national security."
This post has been updated with a statement to The New York Times from White House Press Secretary Sarah Huckabee Sanders.