National Emergency Declaration: A Primer

Congress and the administration have been in a months-long debate over border barrier funding. In fact, it was this debate that led to the longest partial government shutdown in our history. The shutdown ended in February after Congress passed a funding bill that allotted $1.4 billion to fund physical barriers along our southern border. This will pay for approximately 55 miles of new barriers.

That amount was far short of President Trump’s $5.7 billion request, so he declared a national emergency in order to reallocate funds to strengthen security at our southern border. Many of our colleagues on the other side of the aisle have refused to accept there is a growing crisis at our southern border that requires us to act.

The Department of Homeland Security has seen a 136 percent increase in the number of family units and unaccompanied children attempting to cross the border each month in Fiscal Year 2019. Over the past two years, ICE officers have arrested 266,000 aliens with criminal records, including those convicted of assaults, sex crimes and homicides. With a record number of individuals attempting to cross – 76,000 in February alone –resources for the hardworking men and women who protect the southern border are being squeezed. This makes it more difficult for them to stop dangerous drugs and criminals from entering the United States.  

Recognizing this, the administration declared a national emergency so it could use additional tools to strengthen border security. The ability to declare a national emergency was granted to the executive branch via the National Emergencies Act in 1976. Since then, 59 national emergencies have been declared, 30 of which remain in effect. Under the National Emergency Act, the president is given wide latitude to determine which situations are emergencies, and I believe the president is on sound legal footing with regard to the current emergency declaration.

The president’s emergency declaration would allow the administration to take $3.6 billion from military construction projects which would not be contracted by October 31, 2019, to help pay for construction of physical barriers. The president has also identified $2.5 billion from the Department of Defense’s efforts to fight illegal drugs and $600 million from the Treasury Forfeiture Fund to help bolster border security. The administration has the ability to access these latter funds without a national emergency declaration.

Since coming to the Senate, I have said that Congress has ceded too much power to the executive branch over the years, including when it passed the National Emergencies Act in 1976. There are also concerns that a future president may declare a national emergency to invoke a sweeping policy change on an issue such as climate change. Because of these concerns, I am interested in reviewing proposals to rein-in executive powers moving forward, including the future use of a national emergency declaration.

The House and Senate passed a ‘resolution of disapproval’ on the president’s use of a national emergency declaration, which I voted against. Even before the Senate vote, President Trump announced he would veto the resolution. There are likely not enough votes to override a veto, therefore his emergency declaration will stand. I am committed to working with my colleagues on either side of the aisle to finish our appropriations work on time so we can avoid the chaos of the past several months. 

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