Is border security really a national emergency?
US President Donald Trump really wants to pull it off. Since the latest compromise between Democrats and Republicans does not provide any money for his favorite project, a border wall with Mexico, he is now likely to declare a national emergency on the southern border. This is intended to rededicate money from the military budget for the construction.
According to some US media, Trump plans to generate more than eight billion US dollars by declaring a state of emergency. So far, the president had asked the Democrats $ 5.7 billion to build about 300 kilometers of the wall.
Because of the dispute, Trump sent the country into the longest government standstill in US history just before Christmas. Large parts of the government apparatus stopped working for 35 days. 800,000 government employees received no money.
The shutdown ended at the end of January. After that, Democrats and Republicans in Congress had three weeks to find a compromise - until this Friday. Last Monday they finally found a solution. Instead of 300 kilometers of walls, only about 90 kilometers of new fences are supposed to secure the border. And instead of 5.7 or even eight billion dollars, the package only provides just under 1.4 billion euros for border security.
Trump will probably sign the law to avoid another shutdown. However, he wants to get the money for the wall through the instrument of national emergency, said his spokeswoman Sarah Huckabee Sanders. Here are the most important questions and answers:
What is a national emergency?
By definition, this is a condition in which certain unpredictable events that threaten the life or well-being of Americans require immediate action. Classically, this can be a natural disaster, a war situation or a terrorist attack, but also an economic emergency such as galloping inflation or a stock market crash.
Does this definition cover the situation on the border with Mexico?
Not really, the number of illegal border crossings has been falling for years. So the situation has not suddenly deteriorated dramatically and puts the lives of many Americans or their well-being at stake. The situation is not exactly unforeseen either. Apparently, that doesn't stop Trump from declaring a state of emergency that doesn't even exist.
Can the US President single-handedly declare a national emergency?
Yes, he can. Even if the American Constitution does not explicitly describe this right. The legal assumption is that the president always tries to want the best for his country. And he can achieve this goal better in an emergency without legal restrictions. The country is not prepared for the fact that there could be a president who might not want the best for his country but only for himself.
Up until 1976, some presidents resorted to the instrument without any legal regulation: for example, to master the banking crisis of 1933, to get the inflation of 1971 under control or to nationalize US steelworks during the Korean War in 1950.
The National Emergency Act has existed since 1976, which somewhat limits the power of the president. He must state the specific reason for the emergency and may only derive actions from it that are related to this reason.
There are currently 31 national emergencies still in force. As the?
These are mostly restrictions on other states with which the USA is in conflict. With Iran, for example. As long as the conflicts are not resolved, the national emergency will persist at that point. However, once a state of emergency has been declared, it must be extended by the president after one year. Otherwise it runs automatically.
Can Congress Stop Trump?
Not really, but it can build political pressure. The House of Representatives, which is now dominated by Democrats, would first have to pass a resolution calling for the state of emergency to be lifted. This resolution would then also have to be put to a vote in the Senate. If it gets a majority there too, the president would have to put it into effect with his signature. Trump won't do that.
Republicans have a majority in the Senate. Why should they support such a resolution?
There are a number of Republicans who think it is wrong for the president to declare a national emergency simply because he cannot get money from Congress for a certain project through democratic channels. That is too reminiscent of authoritarian systems in which the president just does what he wants, regardless of what parliament decides. The Republican Senate majority leader Mitch McConnell is said to have warned Trump urgently that such a resolution in the Senate can certainly get a majority. That would be a strong political signal against Trump.
What can the President do during a national emergency?
Exactly that is not written down anywhere. The Brennan Center for Justice has identified 136 rights that Congress has granted the president in the event of an emergency. These are pretty far-reaching. For example, he may apply existing laws that would prevent large parts of electronic communication in the country. Or that he can use to freeze Americans' accounts. He can make many decisions that would otherwise require the approval of Congress.
And how does Trump get the money for his wall now?
Two pieces of legislation could help Trump there. On the one hand, it can extract money from a certain item in the defense budget. On the other hand, he can instruct the army to stop investments in civil aid projects and to spend the money on his emergency purpose - building a wall.
The Democrats are threatening legal action. What can they look like?
They hope that the House of Representatives will sue the President with its democratic majority. It is controversial whether the MPs are entitled to do so. Some Democrats rely on a similar case from 2015. At that time, the then Republican-dominated House of Representatives was right that the Obama administration should not put any money past Congress into financing the health care system. The then federal judge Rosemary Collyer decided that the government must not spend any public money without the approval of Congress. That could be the lever with which the Democrats could legally respond to Trump's requests.
Congress cannot contest a declaration of emergency as such in court. At most, those people who would be directly affected by the effects of the declaration of emergency could be entitled to take legal action. So about landowners, on whose ground Trump wants to build his wall. But the chances that the Supreme Court of the USA will rule them out in the last instance are slim. Usually the Supreme Court has declared emergency declarations legal or has avoided commenting on them.
The Democrats hope that this time it could turn out differently. "Not everything the president declares an emergency is an emergency," said Maryland law professor and Democratic Congressman Jamie Raskin. He sits on the Justice Committee of the House of Representatives. "If Congress gives Trump a red light," says Raskin, "then he must not pretend that there is a green light anywhere in the administrative machinery of the government." But in the end that is a legal question. He would appreciate it being answered by the courts.
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