SALT LAKE CITY — On the 18th day of the government shutdown, President Trump will address the nation in prime time Tuesday night, in an attempt to persuade Americans that a “humanitarian and security crisis” on the southern border must be addressed before the shutdown can be resolved.
There have been rumblings that Trump will use the address to declare a state of “national emergency.” Over the weekend, the White House proposed the idea that Trump could invoke emergency powers to build the wall without the approval of Congress.
"We can call a national emergency and build it very quickly," Trump said Friday. "But if we can do it through a negotiated process, we are giving that a shot."
A senior White House official told The Washington Post Tuesday that Trump is not in fact planning to call for a national emergency, but to focus on building a public case for the wall.
“It will not be that drastically different than what the president has said so far, but it’s to a bigger and different audience,” said the official.
Vice President Mike Pence offered a preview of Trump’s anticipated remarks during appearances on morning television shows Tuesday.
“What I expect the president will do tonight is explain to the American people that we have a humanitarian and security crisis at our southern border,” Pence said on NBC’s “Today” show. “He’ll explain the need, not just to build a wall, which he’s determined to do, but also to provide our Border Patrol with additional resources, humanitarian and medical assistance, new technology.”
But while Pence emphasized Tuesday that the Trump administration was committed to hammering out a solution with Congress, he did not rule out the possibility that Trump at some point would declare a national emergency and direct the military to build the wall.
Though such a move could resolve the shutdown by giving Trump a way to sign bills that do not include funding for his wall, it would be an “extraordinarily aggressive move” that would violate constitutional norms and likely face immediate challenges in the courts, The New York Times reported.
After some equivocation, all the major networks agreed to air Trump’s broadcast from the Oval Office at 9 p.m. MT. While presidents have used Oval Office national addresses to make big announcements for decades, this is Trump's first time using the venue to address the public.
Following the news that the networks would air Trump’s address, House Speaker Nancy Pelosi, D-Calif., and Senate Minority Leader Chuck Schumer, D-N.Y., demanded equal television time in a joint statement.
Can Trump declare a national emergency?
The short answer is yes. The president can declare a national emergency, allowing him to enhance his executive powers by creating exceptions to the rules that normally restrict him, according to The New York Times. The purpose is to allow the government to respond quickly to a crisis situation.
"Trump can surely test whether he has the power to declare a national emergency for this purpose," said Kim Lane Scheppele, a professor at Princeton University's Center for Human Values, told USA Today. "The National Emergencies Act allows him to declare a state of emergency without approval from anyone else, but then he has to stay within congressionally delegated emergency powers after that."
The National Emergencies Act, passed in 1976 in the post-Watergate era, created increased oversight over how presidents may invoke emergency powers.
The law requires the president to cite the specific powers he is activating under existing statutes There are hundreds of "provisions of federal law delegating to the executive extraordinary authority in time of national emergency,” according to the Congressional Research Service.
"Under the powers delegated by such statutes, the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens," according to a 2007 CRS report.
But the president’s ability to declare a national emergency does not necessarily mean he could do so to free up funds for the border wall.
"So the question on the border wall is: Is there any emergency power stashed somewhere in an already-existing law that could be stretched to include the movement of funds appropriated for one purpose to be used for another?" Scheppele told USA Today.
What is an 'immigration emergency'?
Under the Immigration and Nationality Act, the president has the authority to declare an “immigration emergency,” defined as “an "influx of aliens which either is of such magnitude or exhibits such other characteristics that effective administration of the immigration laws of the United States is beyond the existing capabilities" of immigration authorities "in the affected area or areas."
The law requires the attorney general or head of a local government to petition the president directly, describing the immigration emergency at hand and what is needed to solve it.
An Immigration Emergency Fund exists for this purpose. But the law only approves $20 million for the fund on an annual basis, USA Today reported. That’s far less than the $5.6 billion Trump is asking for the wall.
Another law allows the secretary of the Army to halt civil works projects during a national emergency and direct troop and other resources to help build “authorized civil works, military construction and civil defense projects that are essential to the national defense,” Elizabeth Goitein, co-director of the Brennan Center Liberty and National Security Program told The New York Times.
A different law permits the secretary of defense to begin military construction projects during a presidentially declared national emergency using funds Congress set aside for military building projects but that had not yet been earmarked for specific initiatives.
“The fundamental principle is that no president or official may spend funds that were not appropriated for that purpose,” William C. Banks of Syracuse University told The New York Times. “But I think that it’s possible that the president could declare a national emergency and then rely on authority Congress has historically granted for exigencies to free up some funds to support constructing a barrier along the border.”
Would an emergency declaration hold up in court?8 comments on this story
If Trump uses emergency powers to build a wall, he is “almost certain to invite a court battle,” The New York Times reported.
In addition, if Congress wanted to terminate a declared emergency, they would require a joint resolution to do so, USA Today reported. House Democrats would need to convince Senate Republicans to join them in blocking Trump’s actions.
Then they would have to get a signature from the president himself — the same person who declared the emergency to begin with — or override his veto.