Having unsuccessfully lobbied Congress for two years to acquire funding for the wall along the southern border, President Donald Trump invoked the NEA earlier this year and declared a state of national emergency to divert billions of dollars of appropriated federal funds to build a wall along the United States/Mexico border. The president issued an executive order citing a statutory provision that provides authorization and funding for military construction projects during emergencies that “require the use of the armed forces,” but only if the projects “are necessary to support such use of the armed forces” and meet the statutory definition of “military construction.”
In passing the NEA, Congress clearly intended for criteria like those to provide meaningful and enforceable checks on the president’s authority to issue emergency declarations. But the president’s invocation of the NEA fails to meet those criteria. For one, at the time of the declaration, there had been no sudden, unexpected change in illegal immigration at the southern border. Official government data puts illegal border crossings in 2017 at their lowest point in 46 years. There were also no significant, unexpected changes in patterns of crime or drug smuggling along the border. Second, it is clear from the president’s own actions that he did not believe the situation at the southern border merited “immediate action.” For the first two years of his administration, he accepted Congress’s decision not to provide border wall funding with little pushback. Lacking the political will to acquire funding through the legislative process, the president now seeks what amounts to an unconstitutional end run around Congress’s constitutional authority to appropriate federal funds.
The Cato Institute has joined the Brennan Center for Justice in filing an amicus a brief in support of a motion to enjoin the president from going through with this blatant, unconstitutional power grab. The president’s emergency declaration to build a wall along the southern border is a sharp departure from past practice. Without judicial intervention, it has the potential to create an extraordinarily dangerous precedent, effectively giving the go‐ahead for future presidents—of any party or political stripe—to invoke emergency powers to address routine or politically‐charged policy problems, or even use those powers to take actions for which Congress has expressly withheld consent. This would be clearly inconsistent with NEA’s intent and allow the executive branch to side‐step the legislative branch in order to achieve its policy goals, effectively upsetting the balance of power between the president and Congress.