A lot has been said recently about the treatment of migrants on the Mexican border, with the separation of migrant children from their parents raising concerns. However, a seemingly more pressing issue arose a few days ago: Donald Trump’s National Emergency Declaration. But just yesterday, the 26th of February, the House voted to overturn President Trump’s declaration.

This declaration, which would free up money to build more physical barriers along the U.S-Mexico border, was overturned. However, it is now becoming progressively harder for opponents of Trump’s emergency. In fact, the resolution will go to the Senate, where it needs only a simple majority to pass. If the resolution passes the Senate, Trump will presumably veto it, in which case a two-thirds majority would be needed in each chamber to override the veto.

Trump claimed the declaration was needed to stop an “invasion” of people, gangs, and drugs. He is simultaneously signing a bill to fund the government through September and taking executive action. In fact, both the House and the Senate have already passed a border security deal. It doesn’t include any money for a concrete wall, though it does include $1.375 billion for physical barriers.

In the U.S.A., it is entirely within the president’s discretion to declare a national emergency. With such a decision, he is able to set aside many of the legal limits on his authority. But, in trying to get wall funding through the National Emergencies Act, the question then becomes how could he get the money for the wall? Which existing laws could allow him to get the money? Some legal experts say Trump cannot get this through the National Emergencies Act, others say he can.

The U.S. Constitution doesn’t specify when and how a state of emergency may be declared and which rights may be suspended (unlike the modern constitutions of many other countries), it doesn’t include a separate regime for emergencies. The few powers it contains for dealing with certain urgent threats, it assigns to Congress, not the president.

However, some legal scholars believe that the Constitution gives the president inherent emergency powers by making him commander in chief of the armed forces, or “just” because the President is vested the Executive Power. In fact, in American history, presidents have cited inherent constitutional powers when taking actions that were not authorized by Congress. For instance, Abraham Lincoln suspended the habeas corpus during the Civil War as a necessary step to preserve the Union, and also, Franklin D. Roosevelt interned U.S. citizens and residents of Japanese descent during World War II.

In declaring a national emergency, more than 100 special provisions become available to the president. There is no doubt that many of these are reasonable responses to genuine emergencies, but some could be really dangerous if used improperly. This is made easier by the fact that the National Emergencies Act doesn’t require that the powers invoked be related to the nature of the emergency. For example, the president can activate laws allowing him to stop many kinds of electronic communications inside the U.S. or to freeze Americans’ bank accounts. Anyway, the availability of these powers assumes that the president will act in the country’s best interest when using them.

But… is there a real emergency?

During his 15th February speech, Trump offered little empirical evidence to back up his assertion that there was a crisis on the border requiring an extraordinary response. “We’re talking about an invasion of our country with drugs, with human traffickers, with all types of criminals and gangs,” he said, then repeating the word “invasion” several times.

Trump maintains that this is a humanitarian crisis. The barrier that he wants to build along the southern border, will make America safer and the money needed to make the giant barrier, according to the president, will quickly repay the costs of interrupted illegal traffic. However, we must unearth whether his project is guided more by the willingness to fulfil an electoral promise and to satisfy his electoral base, rather than by a real emergency.

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