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Trump has threatened to declare a national emergency to build a wall. Is that legal?

As the government shutdown stretched into its 20th day, President Donald Trump repeated a strategy he’s floated several times this week: that he had the “absolute right” to declare a national emergency to fund the border wall if he can’t reach a deal with Democrats.

With negotiations over his more than $5 billion request remaining at an impasse, here’s a look at what we know about whether such a declaration would be legal and what precedent for it exists.

What emergency powers does the president have?

William Brangham asks Elizabeth Goitein of NYU’s Brennan Center for Justice how a national emergency is defined and what powers become available after one is declared.

Under the National Emergencies Act, passed by Congress in 1976, the president has almost “unlimited discretion” to declare a national emergency, said Elizabeth Goitein, co-director of the Liberty and National Security Program at New York University’s Brennan Center for Justice.

Congress approved the law without any definition of or requirements for a “national emergency.”

But, it does require the president to provide Congress with a legal basis for the emergency and outline what emergency powers would be used.

Trump has characterized the situation at the U.S.-Mexico border as a “humanitarian and national security crisis.” He has repeatedly cited a threat of terrorists crossing into the country through the southwest border, but the data does not support that claim.

In fact, border crossings are at historic lows, though there has been a large increase in the number of Central American families seeking asylum at the border in recent months.

What powers are unlocked during an emergency?

In a December 2018 study, the Brennan Center identified 136 statutory powers that may be available to the president after declaring an emergency. The list of individual powers includes the ability to:

  • take over or shut down radio stations;
  • freeze American bank accounts;
  • suspend a law that prohibits the testing of biological and chemical weapons on human subjects.

The rationale behind this additional power is that “laws that ordinarily apply just might not be sufficient in the case of an emergency,” Goitein said. If Congress doesn’t have time to react to a true crisis, this authority gives the President more flexibility to act.

Could emergency powers be used to build a border wall?

There are two laws that may provide some legal cover for Trump to build a wall according to the Brennan Center’s study.

These would “allow the president to move money around within the Department of Defense for military and construction projects or civil defense projects,” Goitein said.

President Donald Trump participates in a tour of U.S.-Mexico border wall prototypes in San Diego, California on March 13, 2018. Trump has threatened a government shutdown if lawmakers don't agree to provide more funding for the border wall. Photo by REUTERS/Kevin Lamarque

President Donald Trump participates in a tour of U.S.-Mexico border wall prototypes in San Diego, California on March 13, 2018. Trump has threatened a government shutdown if lawmakers don’t agree to provide more funding for the border wall. File photo by Photo By Kevin Lamarque/Reuters

Goiten also noted that the military cannot be used for law enforcement activities on American soil. But, since courts have interpreted “law enforcement” narrowly, such as search and seizures, she said the military could be validly deployed for constructing infrastructure.

This wouldn’t be without precedent. In October, Trump sent 5,200 troops to the border to perform a variety of tasks like installing concrete barriers, providing helicopter support and maintaining vehicles.

What powers does Congress have?

Under the same law, Congress can terminate a state of emergency by a vote in both the House and Senate that would then have to be signed by the president.

However, this is unlikely given the Senate is under Republican control. And, assuming the president would object to such a law, it would have to pass with a veto-proof majority — a two-thirds vote in both chambers.

The president’s declaration could also be challenged in courts, a possibility already raised by the new Democratic chairman of the House Armed Services Committee, Rep. Adam Smith.

Traditionally, the judiciary has not questioned the basis of national emergencies called by presidents. But, the military funding that the president is likely to use has limitations, which could result in a court challenge.

The outcome of such a lawsuit is murky though. “It’ll be a fight, and it won’t be a slam dunk on either side,” Goitein said.

How would this compare to other emergency declarations?

Presidents throughout U.S. history have cited executive power to take broad actions without permission from Congress. For example, former President Franklin D. Roosevelt authorized the internment of U.S. residents and citizens with Japanese descent during the Second World War.

More recently, former President George W. Bush declared a national emergency days after the 9/11 terrorist attacks in 2001.

Emergency powers are usually used to address political crises in other nations such as the systemic violation of human rights, war, or a serious threat of abuse of weapons of mass destruction or nuclear weapons, said Sahar F. Aziz, director of the Center for Security, Race and Rights at Rutgers Law School in an email to PBS NewsHour.

For example, Aziz said, emergency powers were invoked in response to opposition to stabilization efforts in the Balkans in 1997 and the wars in Syria and Yemen in 2012.

The president doesn’t necessarily have to prove there has been a major change in circumstances at the southwest border. But compared to the ways emergency powers have previously been invoked, a declaration of an emergency by Trump “may be unprecedented and an abuse of authority for a purely political purpose as opposed to any purported national security purpose,” Aziz said.

States of emergency can be renewed annually, and 31 emergencies, the majority of which are sanctions against individuals and governments in other countries, are actually in effect today according to the Brennan Center.

This text has been updated to reflect that the National Emergencies Act was passed in 1976.