US Shutdown: Can Trump Declare a National Emergency?

By Editor-in-Chief Megan Field

What is the shutdown about?

The US government is entering the 17th day of a partial shutdown due to a disagreement over a spending budget. Donald Trump is in conflict with Democrats who refuse to give him $5.6 billion to fund a wall along the southern border with Mexico. This has meant that a short term spending bill has failed to pass the Republican controlled Senate. Consequently, parts of nine out of fifteen federal agencies have been closed since 22 December- including the Interior Department and the Internal Revenue Service. In practice, this has meant that 800,000 federal employees have been furloughed or working without pay. Significantly, it is only a partial shutdown as 75% of funding has already been approved for the budget year, which started in October. Nancy Pelosi (Democrat), the newly elected speaker of the House of Representatives, led the passage of two bills on Thursday which were designed to re-open the government. However, Mitch McConnell, the Senate Majority Leader, said he refused to bring anything to the floor which Mr Trump would not sign. 

Following a meeting on Friday, which Trump declared ‘very productive’ but Nancy Pelosi insisted was ‘contentious’, the President boldly stated: “We can call a national emergency and build it [the wall] very quickly”. This would mean that the President could bypass Congress and act unilaterally to fund the wall. Subsequently, the government could reopen without resolving the dispute. Commentators are at odds as to the validity of this claim: whilst some argue that the system of checks and balances which is intrinsic to the structure of US government would prevent this, others believe there are ways around it. 

When can a President declare a national emergency?

The President can declare the country is in a state of national emergency at his own discretion; doing so confers a handful of special executive authorities on the person in office so that they may effectively handle the emergency. These powers are granted under the National Emergencies Act 1976, which dictates that the President can take unilateral action in times of crises; however, this is dependent on them notifying Congress, specifying the circumstances that have led to the declaration and documenting the uses of this newly acquired authority- all of which can be considered checks on the President’s ability to act unilaterally. Notably, labelling immigration a national emergency is likely to spark backlash from his opponents. Despite this, President Trump has stated that "I'm very proud of doing what I'm doing… I don't call it a shutdown, I call it doing what you have to do for the benefit and safety of our country."

Would this allow the President to fund the wall?

There is little ambiguity surrounding the President’s ability to declare a national emergency- the uncertainty arises when one starts to consider his ability to allocate funds. US government operates under the principle of checks and balances, intended to guard against one branch of government gaining a disproportionate amount of power in comparison to any other. In this way, whilst the President has the ability to declare an emergency, Congress holds the power of the purse. Holtz-Eakin (president of the American Action Forum and former director of the Congressional Budget Office) stated that “He can declare a national emergency all he wants, but where’s he going to get the money?”. Some have pointed to a previous Department of Defense (DOD) statement which mentioned the Title 10 U.S. code: this suggests that the President could direct military construction projects during times of war or national emergency which are not otherwise authorised. Therefore, some would argue that Mr Trump does indeed have some limited authority to direct the DOD to build portions of the wall. 

Nonetheless, previous Presidents have tried and failed to utilise this method, with Harry Truman being denied the ability to nationalise the steel industry during the Korean War by the Supreme Court. Regardless of the method used, there appears to be consensus that the President would face legal challenges from Congress. In addition, many believe it would damage the President’s credibility in future budget negotiations, with Rep. Adam Smith (D-Wash.), chairman of the House Armed Services Committee voicing concerns that Trump would be signalling that he doesn’t believe that “all money he requests for our country’s defense is needed for legitimate national security purposes”. Likewise it could harm the military as it would divert money from construction projects which support the quality of life of military personnel and their families.  

Therefore, although there is no legal or political consensus, whichever route Trump chooses will be mired with structural barriers and objections from both sides of the political spectrum. Whether he can declare a national emergency in order to fund the wall ultimately depends on how the issue plays out in the political arena. 

Sources and Further Reading 

Image: Mark Fischer @flickr

TalkPolitics is proud to be supported by Audible. For 50% off your new membership, click here.