Susan Walsh, AP
President Donald Trump speaks at the Major County Sheriffs and Major Cities Chiefs Association Joint Conference in Washington, Wednesday, Feb. 13, 2019. (AP Photo/Susan Walsh)

SALT LAKE CITY — President Donald Trump plans to bypass Congress and build a long-promised border wall even though he plans to sign a bipartisan bill for federal spending, The New York Times reports.

Trump’s decision was announced mere minutes after the Senate voted to advance a spending package with the hopes of Trump signing the bill Thursday night.

  • “President Trump will sign the government funding bill, and as he has stated before, he will also take other executive action — including a national emergency — to ensure we stop the national security and humanitarian crisis at the border,” said Sarah Huckabee Sanders, the White House press secretary.

Speaker of the House Nancy Pelosi said Democrats would be “reviewing our options” in regards to the news.

  • “The president is doing an end run around Congress,” she said.

According to The New York Times, "In opting to declare a national emergency, Mr. Trump would seek to access funds for the wall that Congress had not explicitly authorized for the purpose, a provocative move that would test the bounds of presidential authority in a time of divided government."

But Trump's reported decision to call for a national emergency raises questions about the legality of the action and what it means for the president.

What is a national emergency?: A national emergency is an executive action taken by the president that “gives a president extraordinary powers — to seize property, call up the National Guard and hire and fire military officers at will,” USA Today reported.

  • Trump could also seize control of the internet and several other actions, too, The Atlantic reported.
  • "For instance, the president can, with the flick of his pen, activate laws allowing him to shut down many kinds of electronic communications inside the United States or freeze Americans’ bank accounts. Other powers are available even without a declaration of emergency, including laws that allow the president to deploy troops inside the country to subdue domestic unrest," according to The Atlantic.

Can he do it?: Yes. Trump can declare a national emergency. Whether it stands up in court is another thing.

Two U.S. codes support Trump’s potential call for a national emergency, too, which I wrote about for the Deseret News.

  • One of the codes, 10 U.S.C. 284, allows the secretary of defense to “provide support for the counterdrug activities or activities to counter transnational organized crime of any other department or agency of the Federal Government or of any State, local, tribal, or foreign law enforcement agency for” multiple reasons.
  • The other, 10 U.S.C. 2808, says “In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.”

Legality: Experts say that Trump’s decision to call for a national emergency could lead to a legal struggle that wouldn’t end until the middle of next year, according to USA Today.

  • "Everyone’s going to come out of the woodwork,” Stephen Vladeck, a University of Texas law professor, told USA Today. "I think we’re going to see an array of lawsuits that actually would all have to be dealt with separately."

William C. Banks, a Syracuse University law professor, told The New York Times that Trump might be able to use his national emergency powers for a wall.

28 comments on this story
  • “The fundamental principle is that no president or official may spend funds that were not appropriated for that purpose,” he said. “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.”

Flashback: In January, Trump said he could declare a national emergency to build a wall. He said this after the government went into a partial shutdown because Congress and the president couldn’t reach a deal on border wall funding.

  • “I can do it if I want,” he said, according to NBC News. "We can call a national emergency because of the security. ... I haven't done it. I may do it but we can call a national emergency and build it very quickly.”