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With a ‘national emergency,’ could Trump use the military to build the wall?

President Trump has threatened to use executive power to declare a national emergency at the U.S.-Mexico border and obtain funds for a border wall without approval from Congress. But would such a dramatic move be legal? 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.

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  • Amna Nawaz:

    President Trump has several times said that if Congress won't appropriate the billions he wants for the construction of a wall on the southern border, he can declare a national emergency to secure the money.

    As William Brangham reports, while presidents do have sweeping powers to declare emergencies, it's not clear if it would be legal in this case.

  • William Brangham:

    With me here to unpack where presidents get this authority to declare these emergencies and what powers presidents are able to exert is Elizabeth Goitein. She's director of the Liberty and National Security Program at New York University's Brennan Center for Justice.

    Welcome to the "NewsHour."

  • Elizabeth Goitein:

    Thank you very much.

  • William Brangham:

    So,before we get to the president's proposal, can you just walk us through the basic rules of this? A president has the authority to simply declare a national emergency. Tell us a little bit about that.

  • Elizabeth Goitein:

    The law that governs national emergencies is the National Emergencies Act, which was passed by Congress in 1976.

    And under that law, the president has almost unlimited discretion to declare a national emergency. Congress chose consciously not to include a definition of national emergency, not to include any particular requirements or criteria or to require the president to make any kind of showing.

    So, really, all the president has to do under the act is issue a declaration that he signs saying that he thinks there's a national emergency. And at that point, he then gets access to special powers that are contained in more than 100 different laws that have been passed over several decades.

  • William Brangham:

    Some pretty striking individual powers, right? Can you tell us a little bit about what the president can do under this?

  • Elizabeth Goitein:

    Absolutely.

    Well, many of these powers are really quite narrow, quite reasonable, but some of them seem like the stuff of authoritarian regimes. So there are powers that would allow the president to shut down communications facilities and to freeze Americans' bank accounts or to deploy the military domestically.

    So these are some of the powers in there that the president has access to, simply with the stroke of a pen.

  • William Brangham:

    Help us understand, what's the rationale? Why would Congress pass a law that seemingly gives the president this kind of dictatorial power?

  • Elizabeth Goitein:

    The idea behind emergency powers is pretty simple. It's the idea that the laws that ordinarily apply just might not be sufficient in the case of an emergency.

    And if you have a true crisis that's unfolding so quickly that Congress doesn't have time to react to it, then you might need to have some standby authorities that give the president more flexibility.

    The trick is to make sure that there are enough checks and balances, that the president can't actually abuse these authorities to give himself tremendous powers in situations where there is no true emergency, which sort of brings us to the present day.

  • William Brangham:

    Well, let's talk a little bit about that. The president has said there is an emergency on the southern border. And he has said he — if he wants to, if Congress can't do what he wants and appropriate the money that he wants, he can declare this an emergency and secure the funding.

    Is that true? Can he conjure up $5 billion through this act?

  • Elizabeth Goitein:

    So, there are two questions. The first is, can he declare the emergency? And, as we discussed, under the National Emergency Act, it's very easy for him to do that.

    And, frankly, even if there isn't a real emergency, there are very few judges who are going to actually try to look behind that determination.

    But a national emergency doesn't mean that he can do anything he wants. He is still limited to those specific powers that Congress has — has specified in, granted, a lot of different laws. So, the question is, are there specific laws in there that would allow him to build the wall?

    And there are a couple of laws that do allow the president to move money around within the Department of Defense for military construction projects or civil defense projects. And I'm sure those are the powers that the White House lawyers and the Department of Defense lawyers are looking at very closely right now.

  • William Brangham:

    We saw right before the midterm elections that the president deployed some members of the military to string up barbed wire and sort of reinforce the fence.

    Could he actually deploy the military to do actual construction of a wall?

  • Elizabeth Goitein:

    Yes, I think — I think construction of a wall doesn't necessarily, depending on the circumstances — but on its face, it doesn't necessarily cross the line that is Posse Comitatus. That's the Latin phrase, which is a law — it's not in the Constitution.

    It's a statute that says that the military can't be used for law enforcement activities. But the way the courts have looked at that, they have looked at traditional law enforcement activities, like search and seizure and arrest. And things like conducting surveillance, things like constructing infrastructure, those kinds of things probably don't actually rise to the level where they're going to cause Posse Comitatus problems.

  • William Brangham:

    So let's say the president does make this declaration. Let's say the shutdown goes on, the president is tired of where negotiations are not going, and he makes this declaration.

    What do you imagine legally would happen? Because we have heard a lot of leading Democrats say, the president doesn't have this authority and, if you tried to do it, we could crack down on it right away in the courts, they argue, and in Congress.

    What do you imagine happening?

  • Elizabeth Goitein:

    So, absolutely, Congress could act. Under the National Emergencies Act, Congress can terminate a state of emergency by a joint declaration.

    Now, and they…

  • William Brangham:

    Joint — House and Senate would have to declare that?

  • Elizabeth Goitein:

    It's basically a regular law that would have to be passed and signed by the president, which, unfortunately, means that Congress would have to have a veto-proof majority.

    They — just a simple majority to pass it, but we can assume the president would veto it. And so that's the difficulty there with that, using that approach.

    Of course, there would be legal challenges in the courts. And I think there are some pretty good legal arguments to be made that the specific provisions of law the president would probably rely on really shouldn't apply here. But it will — it'll be a fight, and it won't be a slam dunk on either side. So it's a sticky situation, to say the least.

  • William Brangham:

    You argued in a really fascinating essay in "The Atlantic" that Congress should — should take a better look at this and try to define more of these sort of uncertainties that you have described.

    Just briefly, what would you argue that Congress ought to try to delineate?

  • Elizabeth Goitein:

    Yes, first of all, I think Congress shouldn't leave it entirely open for the president, with absolutely no criteria or no guidance even, to decide what's an emergency and what's not.

    There are some criteria that could be specified. But I also think that it shouldn't be entirely up to the president, not just to declare an emergency, but to keep it going year after year after year. Most emergencies last for years on end. We have 31 states of emergency in effect today, including one…

  • William Brangham:

    That just sit on the books permanently?

  • Elizabeth Goitein:

    Sit on the books. There's one that's been on the books since 1979.

    So while it might make sense for the president initially to be able to declare a state of emergency for a very short period of time, I think, after that short period of time, it ought to be up to Congress to actually renew that state of emergency going forward.

  • William Brangham:

    All right, Liza Goitein of the Brennan Center for Justice, thank you so much.

  • Elizabeth Goitein:

    Thank you.

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