IIn one of his first acts as president, Donald Trump issued a proclamation declaring a national emergency at the southern border. The proclamation authorizes the Secretary of Defense to move funds within the department to finance construction of the border wall. It further authorizes the Secretary to call up reservists to assist the Department of Homeland Security in its border activities.
Six years ago, as illegal border crossings neared a 40-year low, Trump also declared a state of emergency to secure funding for the border wall and call up reservists. It is therefore not surprising that he has done the same in his second term, with illegal border crossings at higher levels (although still steadily declining from the records seen in late 2023 and early 2024). .
But increased traffic at the border does not justify what remains an abuse of emergency powers. By using these powers to resolve a long-standing political problem, Trump is usurping the role the Constitution assigns to Congress. Furthermore, the actions he has presented likely exceed the authority conferred by the specific powers he has invoked.
The National Emergencies Act of 1976 gives the president broad discretion to declare a national emergency. This declaration serves as a trigger to unlock the powers contained in 150 different legislative provisions, some of which carry alarming potential for abuse. For example, some provisions authorize the president to take over or shut down communications facilities and freeze Americans’ assets without legal process. It is not difficult to imagine how a president could use these powers to erode both individual freedoms and democracy itself.
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In the proclamation he issued Monday, Trump invoked a provision authorizing the secretary of Defense to reallocate department funds to finance “military construction” projects that Congress has not authorized. He used that provision in 2019 to secure funding for the border wall after a divided Congress refused to allocate the amounts he requested. Rescheduling these funds meant ending ongoing projects to build weapons maintenance shops, fire aid stations and cyber operations facilities. He has now invoked the same provision for the same purpose, without waiting to see whether the new Republican-controlled Congress would provide funding.
Trump also invoked a power that allows the defense secretary to call up reservists, including National Guard forces, in the event of a national emergency. These troops will complement National Guard forces currently deployed to the border in support of the Department of Homeland Security. The military has been deployed in this role for years, and President Biden has relied on the same emergency authority to increase its troop levels. (Because the troops provide logistical support rather than apprehending or detaining migrants, they do not violate the Posse Comitatus Act’s general ban on military participation in law enforcement.)
Leaving aside the merits of these policies, implementing them through emergency powers constitutes an abuse of presidential authority. Emergency powers play a special role in our constitutional system. They give the president extraordinary flexibility to deal with sudden and unexpected crises – the very definition of “emergency” – that Congress could not have anticipated and cannot act with sufficient speed or urgency. flexibility to respond afterwards. If a problem has existed for a long time and Congress has had time to address it, it is not a valid target for emergency powers, no matter how serious it may be.
There is nothing sudden or unexpected about illegal immigration at the southern border. Additionally, Congress can and should address the problem by passing comprehensive immigration reform and allocating sufficient resources to manage the backlog of people seeking to immigrate through legal means. But so far, Trump hasn’t shown much interest in a long-term solution. Indeed, with Congress poised to pass a bipartisan border security bill in 2024, he reportedly pressured Republican lawmakers to rescind it so he could continue campaigning on border chaos.
Unfortunately, even though Congress clearly intended to declare national emergencies sparingly, there is no definition of “national emergency” in the law. In the absence of such a definition, courts have historically shown great deference to the President’s determination that an emergency exists. But they have been much more willing to examine whether a president’s actions were consistent with the specific emergency powers invoked by the president. And for that matter, Trump will probably be in trouble.
In particular, some courts have struck down Trump’s prior use of the “military construction” provision to build the border wall. According to this provision, the purpose of the construction project must be to support a deployment of the armed forces. For example, a temporary base may be built to support troops deployed to a remote location overseas. The border wall reverses this situation: instead of construction supporting a military deployment, the military is deployed to support construction. The court decisions were stayed on appeal and the Supreme Court overturned them in 2021 after Biden ended Trump’s emergency declaration. But the same arguments will be made today – and if the courts faithfully interpret and apply the law, they should prevail.
Trump’s invocation of the authority to call up reservists may fail for another reason. Under a separate law, the armed forces cannot provide support to law enforcement agencies (such as the Department of Homeland Security) “if the provision of such support would harm preparedness military of the United States. U.S. military personnel are already stationed in more than 160 countries around the world, and the National Guard is running out of steam. Additionally, long border deployments have proven detrimental to morale, at a time when the military faces unprecedented recruitment and retention challenges. Under these circumstances, any mass call-up of reservists would likely be detrimental to military preparedness.
There is no doubt that there are serious problems at the southern border. The number of people trying to flee persecution, drug- or gang-related violence and economic hardship is creating a humanitarian crisis. Additionally, the level of illegal migration in recent years reflects a broken immigration system that needs to be fixed.
But misuse of emergency powers will not solve the problem; on the contrary, it will open the door to further abuses by this or a future president. And next time, these abuses could involve even more powerful emergency powers, with even greater potential to undermine freedoms and democracy. Until Congress reforms the National Emergencies Act to prevent presidential excesses, it will be up to the courts to keep us off this slippery slope.
