Battle Over the Border Wall

On February 15, President Trump declared a national emergency to fund the construction of a 1,000-mile wall on the border with Mexico after Congress provided money for only a sliver of the project.

The announcement came as the president signed a spending deal negotiated by Democrats and Republicans in Congress that included $1.375 billion for border fencing, but not the $5.7 billion Trump had been demanding for construction of a much longer wall. The agreement headed off what would have been the second shutdown of the federal government in the space of a month over the issue. But Trump’s declaration prompted lawsuits that set up a constitutional showdown over the separation of powers and the president’s authority.

Here’s what you need to know to understand the battle over the emergency declaration.

On February 15, President Trump declared a national emergency to fund the construction of a 1,000-mile wall on the border with Mexico. The move came after Congress provided money for only a sliver of the project.

At the time of the announcement, the president signed a spending deal negotiated by Democrats and Republicans in Congress. The deal included $1.375 billion for border fencing. But it didn’t include the $5.7 billion Trump had been demanding for construction of a much longer wall. The agreement headed off what would have been the second shutdown of the federal government in the space of a month over the issue. But Trump’s declaration prompted lawsuits that set up a constitutional showdown. The separation of powers and the president’s authority are now being questioned.

Here’s what you need to know to understand the battle over the emergency declaration.

Since December, Trump has been asking for $5.7 billion to build a wall along the southern border. About 650 miles of the 2,000-mile-long border between the U.S. and Mexico already have some kind of barrier (see graphic below). Building a wall along the entire border was a key campaign promise—something Trump said would stop the flow of undocumented immigrants and illegal drugs into the U.S.

Trump’s insistence on billions for the wall after Congress refused to allocate it led to a government shutdown that began in late December and lasted a record 35 days, forcing some 800,000 federal employees to go without their paychecks.

In response to Trump’s emergency declaration, 16 states, including California and New York, filed a lawsuit arguing that the president doesn’t have the authority to divert funds for constructing a wall along the Mexican border because Congress controls federal spending.

Since December, Trump has been asking for $5.7 billion to build a wall along the southern border. About 650 miles of the 2,000-mile-long border between the U.S. and Mexico already have some kind of barrier (see graphic below). Building a wall along the entire border was one of Trump’s key campaign promises. He said it would stop the flow of undocumented immigrants and illegal drugs into the U.S.

Trump’s insisted on billions for the wall after Congress refused to fund it. The clash led to a government shutdown that began in late December. The shutdown lasted a record 35 days. It forced some 800,000 federal employees to go without their paychecks.

In response to Trump’s emergency declaration, 16 states, including California and New York, filed a lawsuit. They argue that the president doesn’t have the authority to divert funds for constructing a wall along the Mexican border. They point to the fact that Congress controls federal spending.

Congress has enacted laws that permit the president, upon declaring a national emergency, to take steps that would normally be forbidden by law. The idea is to allow the executive branch to move quickly in emergency circumstances.

The National Emergencies Act of 1976 gives the president broad authority to decide whether an emergency exists. Presidents have used this law to declare emergencies about five dozen times. But most of those cases dealt with foreign crises and involved freezing assets or blocking trade or exports, not redirecting money without congressional authorization.

White House officials cite two times that such emergency declarations were used by presidents to spend money without legislative approval—once by President George H.W. Bush during the run-up to the Persian Gulf War (1990-91), and then by President George W. Bush in 2001 after the 9/11 terrorist attacks.

Legal experts have pointed to several statutes that permit the executive branch to redirect military construction funds in an emergency. One such law, for example, permits the secretary of defense to begin military construction projects “not otherwise authorized by law” that support the armed forces.

Congress has enacted laws that permit the president to take steps that would normally be forbidden by law. To do so, a national emergency must be declared. The idea is to allow the executive branch to move quickly in emergency circumstances.

The National Emergencies Act of 1976 gives the president broad authority to decide whether an emergency exists. Presidents have used this law to declare emergencies about five dozen times. But most of those cases dealt with foreign crises. And they’ve involved freezing assets or blocking trade or exports. Most haven’t been used to redirect money without congressional authorization.

White House officials cite two times that such emergency declarations were used by presidents to spend money without legislative approval. The first was by President George H.W. Bush during the run-up to the Persian Gulf War (1990-91). The second time was by President George W. Bush in 2001 after the 9/11 terrorist attacks.

Legal experts have pointed to several statutes that permit the executive branch to redirect military construction funds in an emergency. One such law, for example, permits the secretary of defense to begin military construction projects “not otherwise authorized by law” that support the armed forces.

That’s the crux of President Trump’s argument. “We’re talking about an invasion of our country,” Trump said when he announced the emergency declaration, “with drugs, with human traffickers, with all types of criminals and gangs.”

Critics argue that the facts don’t support that. The number of people crossing the border illegally is far lower than it was in the late 1990s and early 2000s, according to official government statistics. The relatively new and growing phenomenon of caravans of Central American migrants consists largely of families who present themselves to border officials and request asylum, rather than trying to elude authorities. Thousands of these Central American families have been apprehended in recent months. Critics say a wall would have little effect on the flow of illegal drugs into the country, which  U.S. Customs and Border Protection says are mostly smuggled through official ports of entry.

President Trump may also have undercut his own argument for declaring an emergency when he told reporters at the White House, “I didn’t need to do this, but I’d rather do it much faster. I just want to get it done faster, that’s all.”

“Probably the best evidence [for overturning the declaration] is the president’s own words,” says California Attorney General Xavier Becerra.  

That’s the crux of President Trump’s argument. “We’re talking about an invasion of our country,” Trump said when he announced the emergency declaration, “with drugs, with human traffickers, with all types of criminals and gangs.”

Critics argue that the facts don’t support that. The number of people crossing the border illegally has decreased. In fact, it’s far lower than it was in the late 1990s and early 2000s, according to official government statistics. The relatively new and growing phenomenon of caravans of Central American migrants consists largely of families who present themselves to border officials. These migrants request asylum, rather than trying to elude authorities. Thousands of these Central American families have been apprehended in recent months. Critics say a wall would have little effect on the flow of illegal drugs into the country. U.S. Customs and Border Protection says illegal drugs are mostly smuggled through official ports of entry.

President Trump may also have undercut his own argument for declaring an emergency. He told reporters at the White House, “I didn’t need to do this, but I’d rather do it much faster. I just want to get it done faster, that’s all.”

“Probably the best evidence [for overturning the declaration] is the president’s own words,” says California Attorney General Xavier Becerra.

While President Trump argues he’s well within his rights to declare an emergency, constitutional scholars and many lawmakers are alarmed that his decision sets a dangerous new precedent. The Founders deliberately gave Congress, not the president, the authority to make laws and to allocate money—the so-called “power of the purse.” What will prevent future presidents, they argue, from declaring emergencies if they can’t get Congress to approve whatever project they want?

“It sets a precedent that a president can, without regard to an actual existence of an emergency, use this tool to evade the normal democratic process and fund projects on his own,” says William Banks, a Syracuse University law professor.

President Trump continues to argue that he’s well within his rights to declare an emergency. Still, constitutional scholars and many lawmakers are alarmed that his decision sets a dangerous new precedent. The Founders deliberately gave Congress, not the president, the authority to make laws and to allocate money. It’s called the “power of the purse.” What will prevent future presidents, they argue, from declaring emergencies if they can’t get Congress to approve whatever project they want?

“It sets a precedent that a president can, without regard to an actual existence of an emergency, use this tool to evade the normal democratic process and fund projects on his own,” says William Banks, a Syracuse University law professor.

The lawsuits filed against President Trump—and the likelihood that others will soon follow—means that with court actions pending a wall won’t go up anytime soon.

It’s not clear how the legal questions will be resolved. The courts are often reluctant to substitute their own judgment for the president’s when it comes to security matters. In other words, the courts may not even address the question of whether the facts warrant an emergency declaration, preferring instead to defer to the president on a national security issue. The courts could end up focusing on whether states can show they’re being harmed by the president’s diversion of funds to build the wall.

In addition to the uncertainty about how the courts will rule is the possibility that Congress could get fed up with presidents using emergency powers and vote to restrict them.

“The risk the president runs is that Congress will take away much, if not most, of the discretion it’s given to the president,” says Stephen Vladeck, a law professor at the University of Texas, Austin. “And then the concern is that Congress could hamstring a future president from having all the tools he or she might need to react to a future emergency. So a short-term win for the president could become a long-term loss for the presidency.”

There’s a high likelihood that more lawsuits will soon be filed against President Trump. With court actions pending, a wall won’t go up anytime soon.

It’s not clear how the legal questions will be resolved. The courts are often reluctant to substitute their own judgment for the president’s when it comes to security matters. In other words, the courts may not even address the question of whether the facts warrant an emergency declaration. They might instead prefer to defer to the president on a national security issue. The courts could end up focusing on whether states can show they’re being harmed by the president’s diversion of funds to build the wall.

In addition to the uncertainty about how the courts will rule is the possibility that Congress could get fed up with presidents using emergency powers and vote to restrict them.

“The risk the president runs is that Congress will take away much, if not most, of the discretion it’s given to the president,” says Stephen Vladeck, a law professor at the University of Texas, Austin. “And then the concern is that Congress could hamstring a future president from having all the tools he or she might need to react to a future emergency. So a short-term win for the president could become a long-term loss for the presidency.”

With reporting by Charlie Savage and Robert Pear of The Times.

With reporting by Charlie Savage and Robert Pear of The Times.