National emergencyCan Congress or the courts reverse Trump’s national emergency?
President Donald Trump declared a national emergency to pay for the construction of a wall along the U.S.-Mexico border, after Congress, in its new spending bill, denied him the full money to build it. Presidents generally claim emergency power two ways: through inherent or implied authority under the U.S. Constitution or under statutory authority granted by Congress. The U.S. Constitution says nothing specific about presidential emergency power: Presidents can only claim such authority is implied or inherent. The emergency powers the Constitution does describe are actually assigned to Congress. Congress has delegated some emergency powers to the president through statutes, including the National Emergencies Act. But Congress retains the power to reject a president’s declaration of a national emergency. Now the question is: Will Congress use the power available to it, or will it play the role of passive spectator?
President Donald Trump declared a national emergency to pay for the construction of a wall along the U.S.-Mexico border, after Congress, in its new spending bill, denied him the full money to build it.
“We’re talking about an invasion of our country with drugs, with human traffickers, with all types of criminals and gangs,” Trump said in a speech on Feb. 15 before signing the declaration.
Democratic Speaker of the House Nancy Pelosi warned Trump against declaring a national emergency, saying that it set a precedent for future Democratic presidents to use that power. A number of liberal organizations have threatened to file challenges in court on the grounds that Trump’s move is an abuse of power.
But will the courts step in? What is Congress’s role in this situation?
As I explain in my book Emergency Presidential Power, presidents generally claim emergency power two ways: through inherent or implied authority under the U.S. Constitution or under statutory authority granted by Congress.
Relying on the Constitution as a basis for emergency power is controversial, and less likely to stand up to meaningful congressional or judicial review. The U.S. Constitution says nothing specific about presidential emergency power: Presidents can only claim such authority is implied or inherent.
The emergency powers the Constitution does describe are actually assigned to Congress. Congress has delegated some emergency powers to the president through statutes, including the National Emergencies Act. But Congress retains the power to reject a president’s declaration of a national emergency.
Now the question is: Will Congress use the power available to it, or will it play the role of passive spectator?
Gaining congressional approval
Since presidents lack any specific constitutional emergency power, they often find it necessary to gain congressional authorization. For instance, at the start of the Civil War, with Congress out of session, President Abraham Lincoln suspended habeas corpus and took other unilateral actions. He later sought and gained retroactive approval from Congress for these actions.
