What You Need to Know about the “National Emergency Declaration”

Editor’s Note: This article was updated after the President’s announcement to add a fifth analysis.

President Donald Trump declared a national emergency on Friday, a move that the White House hopes will allow the administration to fund the construction of a wall along the southern border. This highlights five articles published at Just Security to help readers understand these issues and what is at stake.

  1. Nicholas Rasmussen, Terrorists and the Southern Border: Myth and Reality

Former Director of the U.S. National Counterterrorism Center (NCTC), Dec. 2014-Dec. 2017 (@NicholasRasmu15)

During the government shutdown in early January, the White House and Homeland Security Secretary claimed a reason for the wall was due to terrorists coming over the southern border. President Trump was expected to invoke that rationale in his evening address to the nation from the Oval Office on Jan. 8, 2019. That morning, Just Security published an article by Nicholas Rasmussen, who served as director of the National Counterterrorism Center from December 2014 until December 2017. Rasmussen wrote:

In reality, no such crisis exists.

Our federal courthouses and prisons are not filled with terrorists we’ve captured at the border. There is no wave of terrorist operatives waiting to cross overland into the United States. It simply isn’t true. Anyone in authority using this argument to bolster support for building the wall or any other physical barrier along the southern border is most likely guilty of fear mongering and willfully misleading the American people.

Why do I know this? As Director of the National Counterterrorism Center (NCTC) from December 2014 until December 2017, it was my job to lead the government’s efforts to collect and analyze all available information about terrorist threats to the Homeland

For those not willing to take my word or others for it, there is a better indicator that the Administration’s arguments about a large-scale terrorist infiltration across our southern border are specious. If that proposition were true, there would certainly be current intelligence assessments laying out the details of this threat, even citing specific cases of imprisoned terrorists that had made their way through the criminal justice system. And if the Administration wished to provide support for its claims, I suspect it would have worked to declassify for public consumption relevant portions of those classified assessments or at the very least, highlighted past prosecutions using publicly available court documents. To my knowledge, no such effort is underway. That’s because the Intelligence Community is almost certainly not able to stand publicly behind what the White House and DHS are saying.

The President did not invoke the terrorism rationale in his Oval Office address, and the administration has since turned to other rationales such as drugs and crime.

  1. Robert S. Taylor, A Caution to Pentagon Officials Asked to Obligate “National Emergency” Funds

Former Principal Deputy General Counsel at the Department of Defense, and former Acting General Counsel at the Department of Defense

Former Acting General Counsel of the Department of Defense, Robert Taylor focused on the Anti-Deficiency Act, a law that states it is illegal for any government official or employee to “make or authorize an expenditure” that was not appropriated by Congress. The Act authorizes the imposition of administrative penalties as well as criminal penalties on individuals. Taylor’s analysis focuses not on the legality of declaring a national emergency, but on a second order question: the legality of invoking statutes that would allow for the redirection of military funds if a national emergency were declared. He writes:

It is not enough that there be a “national emergency;” that national emergency must be one that “requires use of the armed forces,” and the military construction projects that may be authorized are only ones “necessary to support such use of the armed forces.”

Taylor cautions U.S. officials who may sign off on the use of funds:

Accepting a presidential determination that there is a “national emergency” and that that emergency “requires the use of the armed forces” would probably not expose any DoD employee to substantial risk of criminal liability — but it is plausible that a new Administration and the courts would hold DoD officials accountable for their own determination of whether expenditures on a border wall would be “necessary to support such use of the armed forces.” The Acting Secretary and even some subordinate officials should carefully weigh their responsibilities under the law, and their potential criminal exposure, before proceeding to obligate funds appropriated to DoD on any border wall, even if the President should declare a national emergency and invoke § 2808.

  1. Sam Berger, Trump’s Plan to Have the Military Build the Wall is Illegal

Former Senior Policy Adviser at the White House Domestic Policy Council, former Senior Counselor and Policy Adviser at the Office of Management and Budget (@SamBerger_DC)

Sam Berger argued that President Trump’s plan to use a national emergency declaration to build a border wall is illegal and impractical. He starts by noting that the Constitution and Anti-Deficiency Act require Congressional authorization and appropriation before federal money can be spent, and that Congress has not authorized border wall construction.

He then turns his attention to the Trump administration’s claim that Congress granted the President such authority by virtue of the National Emergencies Act (NEA).

While the NEA provides broad authority to declare a national emergency, simply saying he thinks something is a national emergency does not provide Trump with authority to build a wall. In order to use emergency military construction authority, there must in fact exist a national emergency “that requires use of the armed forces.” In other words, beyond declaring simply that a national emergency exists, the executive branch must be able to show that the emergency at issue necessitates use of the armed forces.

There’s no evidence that any such emergency exists with respect to our border with Mexico. Border crossings are quite low by historical standards. And while the Trump administration has falsely argued that a border wall is necessary to combat terrorism, its own data shows there is “no credible evidence” of terrorists crossing the Mexican border. Instead, there has been an increase in families with children escaping violence in Central America and seeking asylum in the United States. There is no reasonable argument that families and children seeking asylum constitute an emergency that demands a military response.

Berger further identified the critical statutory distinction between support of military operations, and the purpose of a military deployment:

But even if the Trump administration were able to argue for some type of emergency, or a court declined to closely review the executive branch’s judgment on this matter, it would also have to show that military construction was “necessary to support such use of the armed forces.” But as Trump has made abundantly clear, the construction of a wall is not to support the use of the armed forces, it’s the purpose of employing the military in the first place.

Finally, Berger argues that practical impediments would plague any effort by President Trump to use emergency powers to end-run Congress. Most notably, Defense Department officials are unlikely to want to carry out orders that will divert money from existing, approved military construction projects — especially for an order many deem illegal.

  1. Fionnuala Ní Aoláin, International Human Rights Law and Trump’s Invocation of Emergency Powers

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School, Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland (@NiAolainF)

An important subject that does not receive enough attention involves the international legal and political dimensions of declaring a national emergency. Fionnuala Ní Aoláin wrote about the global implications for misuse and abuse of emergency powers by executives. She wrote:  

One of the most troubling aspects of the President’s flirtation with emergency powers is the signal it sends to other states. As I have documented at length elsewhere, the abuse of emergency powers is rife across the globe. It is particularly important that democratic states send strong and consistent signals about such abuse, making clear that emergencies must be factually proven, that the ordinary law is insufficient to cope with the threat at hand, and that the measures taken do not constitute a carte blanche to disregard the national and international protections of human rights, due process, and legal accountability. In the absence of a proven, empirically justified and generally agreed crisis in the United States, many countries will read the President’s moves as further undermining agreed international legal norms. Such a move will empower weak rule of law states to invoke emergencies, using the executive practice of the United States as precedent. States of emergency are often synonymous with systematic human rights violations, abrogation of checks and balances, and the disproportionate empowerment of the executive branch. An unjustified state of emergency used to subvert normal democratic processes in the United States sets a grim global precedent, and robs the U.S. of the moral authority to call out such abuse elsewhere. The costs of this flirtation are not just domestic and will be reckoned in global terms.

5. Kate Brannen, Exclusive: Mattis Drafting Specific Options for Using Defense Dollars to Pay for Trump’s Wall

Editorial Director of Just Security (@K8brannen)

So where will this money come from, under the emergency declaration? White House officials said $3.6 billion would come from funding budgeted for military construction projects, $2.5 billion from counternarcotics programs and $600 million from a Treasury Department asset forfeiture fund, according to the New York Times. That will be added to $1.375 billion authorized by Congress this week as part of a spending package that averted another partial government shutdown.

Already ahead of the mark in March 2018, Just Security Editorial Director Kate Brannen broke down the numbers and the Pentagon-related authorities involved and then-Secretary Mattis’ plans:

Trump is likely to be disappointed when he learns that thanks to the checks and balances built into the federal government, moving money around on a whim is not that easy. In fact, it’s usually illegal. The Pentagon has a little bit of wiggle room to move certain funds around without congressional approval, but generally, it must spend its money exactly the way in which Congress directs it.

This leaves only a few options for the Defense Department to redirect money legally to pay for Trump’s wall.

Image: A U.S. worker is photographed during construction of 32km of the border wall by order of President Donald Trump on the border between Ciudad Juarez, Chihuahua state, Mexico and Santa Teresa, New Mexico on April 17, 2018. (Photo by HERIKA MARTINEZ/AFP/Getty Images)

 

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