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Last Friday President Trump said he was considering using his national emergency powers to secure funding for the construction of a border wall between U.S.-Mexico border. “We can call a national emergency and build it very quickly,” said the president.

What are national emergency powers?

The President of the United States has certain powers that may be exercised in the event that the nation is threatened by crisis, exigency, or emergency circumstances (other than natural disasters, war, or near-war situations). Some of these powers are either implied or explicitly stated by the U.S. Constitution. Others are delegations of authority through legislation, such as the National Emergencies Act.

How does a U.S. President declare a national emergency?

The president can declare a national emergency through an executive order. Per the National Emergencies Act, the president must specifically declare a national emergency and act in accordance with the rest of the Act.

What is the National Emergencies Act?

The National Emergencies Act (NEA) is a law passed by Congress in 1976 that authorizes the president to declare a national emergency. A declaration under NEA triggers emergency authorities contained in other federal statutes.

The NEA does not provide any specific emergency authority on its own, but relies on emergency authorities provided in other statutes. A national emergency declaration allows for the activation of these other statutory authorities, though they must be specifically identified in the president’s declaration before taking effect.

How are national emergencies ended?

After a president declares a national emergency, it can be terminated only by a proclamation of the president or by a concurrent resolution of Congress.

What are the accountability requirements during a national emergency?

There are three main requirement outlined in the National Emergencies Act:

• The President must maintain a file and index of all significant orders, rules, and regulations, issued during such emergency pursuant to such declarations.

• All such significant orders of the president must be promptly transmitted to Congress.

• The president shall transmit to Congress, within ninety days after the end of each six-month period after such declaration, a report on the total expenditures incurred by the U.S. Government during such six-month period which are directly attributable to the exercise of powers and authorities conferred by such declaration. Not later than ninety days after the termination of each such emergency or war, the President shall transmit a final report on all such expenditures.

How many national emergency declarations have been issued?

Since the NEA took effect in 1976 there have been over fifty declarations of national emergency by U.S. presidents. Currently, 28 are still in effect (the date is the year the emergency was declared):

1979 — Blocking Iranian Government Property

1994 — Proliferation of Weapons of Mass Destruction

1995 — Prohibiting Transactions with Terrorists Who Threaten to Disrupt the Middle East Peace Process

1995 — Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum

1995 — Blocking Assets and Prohibiting Transactions with Significant Narcotics Traffickers

1997 — Blocking Sudanese Government Property and Prohibiting Transactions with Sudan

1998 — Blocking Property of the Governments of the Federal Republic of Yugoslavia (Serbia and Montenegro), the Republic of Serbia, and the Republic of Montenegro, and Prohibiting New Investment in the Republic of Serbia in Response to the Situation in Kosovo

2001 — Continuation of Export Control Regulations

2001— Declaration of National Emergency by Reason of Certain Terrorist Attacks

2001— Blocking Property and Prohibiting Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism

2003 — Blocking Property of Persons Undermining Democratic Processes or Institutions in Zimbabwe

2003— Protecting the Development Fund for Iraq and Certain Other Property in Which Iraq has an Interest

2004— Blocking Property of Certain Persons and Prohibiting the Export of Certain Goods to Syria

2004— Blocking Property of Certain Persons and Prohibiting the Importation of Certain Goods from Liberia

2006— Blocking Property of Certain Persons Contributing to the Conflict in Côte d’Ivoire

2006— Blocking Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus

2006— Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo

2007— Blocking Property of Persons Undermining the Sovereignty of Lebanon or Its Democratic Processes and Institutions

2008— Continuing Certain Restrictions with Respect to North Korea and North Korean Nationals

2010— Blocking Property of Certain Persons Contributing to the Conflict in Somalia

2011— Blocking Property and Prohibiting Certain Transactions Related to Libya

2011— Blocking Property of Transnational Criminal Organizations

2012— Blocking Property of Persons Threatening the Peace, Security, or Stability of Yemen

2014— Blocking Property of Certain Persons Contributing to the Situation in Ukraine

2014— Blocking Property of Certain Persons With Respect to South Sudan

2014— Blocking Property of Certain Persons Contributing to the Conflict in the Central African Republic

2015— Blocking Property and Suspending Entry of Certain Persons Contributing to the Situation in Venezuela

2015— Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities

2015— Blocking Property of Certain Persons Contributing to the Situation in Burundi

Can President Trump declare a national emergency on border security?

Under the NEA, President Trump has broad latitude to issue an emergency proclamation. However, if he issues such an executive order he will almost assuredly by immediately sued by members of Congress. Even before the passage of the NEA the Courts put limits on the president’s ability to use the emergency powers to enact policy.

For example, during the Korean War President Truman issued an executive order directing Secretary of Commerce Charles Sawyer to seize and operate most of the nation’s steel mills. This was done in order to avert the expected effects of a strike by the United Steelworkers of America. In a 6-to-3 decision, the Court held that the President did not have the authority to issue such an order, and said that “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”

Based on the president’s ments and actions, the Supreme Court would likely rule such action as an unconstitutional attempt to get around Congress’s refusal to fund the border wall.