President Trump and Congress narrowly avoided another partial government shutdown, reportedly agreeing to a funding deal that includes $1.375 billion for the U.S.-Mexico border wall.
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Because the spending bill does not contain the $5.7 billion that Trump requested for the wall, Senate Majority Leader Mitch McConnell said Thursday the president will declare a national emergency and move forward with construction.
"I've indicated to him that I'm going to prepare, I'm going to support a national emergency declaration," McConnell said on the Senate floor. "So for all of my colleagues, the president will sign the bill."
It’s unclear whether the president can legally declare a national emergency to build the wall; if he does so, it will ikely face immediate outcry -- and a legal challenge -- from Democrats.
Under the National Emergencies Act of 1976, Trump does have the legal authority to declare a national emergency. However, the act does not specify what constitutes an emergency, nor did it set specific criteria for declaring one. Instead, it set up the procedural requirements.
In order to call it, Trump would have to formally submit to Congress and the Federal Register a declaration of the national emergency and to specify the exact statutory authorities he’d be invoking. If he did not renew the declaration every year, it would expire. Congress is able to rescind a declaration, but to do so, they’d need to pass a joint resolution.
According to PolitiFact, however, declaring a national emergency would not automatically allocate the $5.7 billion Trump wants for the wall. Some experts also believe the president would invoke 10 U.S. Code Section 2808 and 33 U.S. Code Section 2293, which allows the use of “armed forces to undertake military construction projects, and the termination or deferment of Army civil works projects and using those resources to undertake other construction essential to national defense,” PolitiFact reported.
Since November 1979, there have been 58 declared national emergencies, according to data published by the Brennan Center; 31 are still in effect. They often deal with issues pertaining to national security or foreign affairs.
Experts also believe that the grounds for a declaration surrounding immigration in the U.S. are limited -- and could be tantamount to an abuse of executive powers.
"There is little to support claims of ‘gushing’ in between points of entry or that the gaps in the existing barriers are the source of any threats to national security," Toni Massaro,constitutional law professor at the University of Arizona James E. Rogers College of Law, told PolitiFact. “"Building a wall on the southern border may not solve the specific perils identified by the president; and the president's party had absolute control of the federal government for the past two years and did not authorize funds to build the wall."