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The Fight to Secure the Border: Frequently Asked Questions

Feb 20, 2019

Background:

Last week, President Trump declared a national emergency after Congress failed to include the President’s $5.7 billion request for new border wall funding in the omnibus spending bill. Since Congress failed to fulfill its responsibility to secure the border, the Trump Administration was left with no other choice but to use all the legal executive powers available. Here are some frequently asked questions and answers about the National Emergency Declaration and the ongoing border security fight:

1. What is the difference between reprogramming, transferring, and declaring a national emergency?

Reprogramming is the shifting of funds within an account and is a power that agencies may exercise in order to have flexibility in the expenditure of funds for a purpose other than for what they were appropriated. This power is generally permitted unless specifically restricted by statute. Transferring is the shifting of funds from one account to another and typically involves the movement of funds within an agency or department, though it may involve the movement of funds between agencies or departments.

The declaration of a national emergency provides the President with the authority to reallocate funds from one or more accounts to an account for funding a solution to the national emergency. When the President declares a national emergency under the National Emergencies Act, he must notify Congress that he has done so and must elaborate on what other existing laws he is relying upon to justify that declaration and what emergency powers he can exercise under those laws. In this case, the President cited two federal statutes, (50 U.S.C 1601 et.seq and 10 U.S.C. 2808) that legally allow him to use emergency funds for border security. Specifically, one of these statutes (10 U.S.C. 2808) involves reprogramming and permits the President to reprogram existing federal appropriations in response to an emergency declaration.

2. Where will the $8.1 billion come from?

The $8.1 billion will come from:

  • Approximately $1.3 billion from the recently enacted DHS appropriations bill
  • About $601 million from the Treasury Forfeiture Fund
  • Up to $2.5 billion under the Department of Defense funds transferred for Support for Counterdrug Activities (Title 10 United States Code, section 284)
  • Up to $3.6 billion reallocated from Department of Defense military construction projects under the President’s declaration of a national emergency (Title 10 United States Code, section 2808)

Overall, President Trump intends to obtain $8.1 billion for border security by using these funding sources sequentially and as needed.

3. Can Congress block President Trump’s Emergency Declaration?

Congress can pursue a disapproval resolution to end the President’s national emergency declaration. If the resolution passes in the House, the Senate must bring it up for a vote within 15 calendar days. If the resolution passes both chambers, the President has the authority to veto it. In this event, Congress would need a two-thirds majority to override the President’s veto.

4. How are the Courts likely to react?

President Trump will certainly face legal challenges over his national emergency declaration. On Monday, 16 states filed a federal lawsuit focused on blocking the emergency declaration. While the public messaging will be about broad constitutional concerns, the merits of the case will likely focus first on whether the states have standing (the states are arguing that they are harmed because they will not receive funds they otherwise would have) and secondly on whether the President has followed the applicable statutes. Most likely, the states’ lawsuits will stall the emergency declaration and spark a series of legal battles that may come before the Supreme Court. It is quite possible that the case may not even be resolved by 2020 which means the border security issue could still be a hot button topic during the 2020 elections.

In addition to the lawsuit from the states, three Texas landowners filed suit claiming that the eminent domain power that the federal government will have to employ in order to build a wall across their private land is unlawful because the emergency declaration is unlawful. The ACLU and an environmental group also filed suit or announced plans to file suit, and the House is considering litigation as well.

5. Could the Courts block the President’s Emergency Declaration and is the Emergency Declaration legal?

Although courts have limited the President’s emergency powers in the past, the Trump Administration has a strong legal argument on their side for declaring a national emergency. Under the National Emergencies Act, the President has the broad authority to declare a national emergency for whatever reason he sees fit as long as he explains the specific statutory authority he is using to secure the border. In this case, the President is citing two federal statutes (50 U.S.C 1601 et.seq, and 10 U.S.C. 2808) that legally allow him to use emergency funds for border security.

In addition, numerous presidents have declared a national emergency since the National Emergencies Act was enacted including former President Bush who declared a national emergency in 2001 which invoked reprogramming authority granted by Title 10 United States Code, section 2808 and President Obama who used the same authority 18 times to fund projects between 2001 and 2014. A total of 58 national emergencies have been declared since 1976 and 31 are still in effect today.

6. Is there amnesty in the underlying DHS appropriations bill that the President signed?

A lot of political commentators have referenced Section 224 of the DHS Appropriations bill and have argued to varying degrees that it provides a new pathway to amnesty for illegal immigrants. In short, the section disallows deportation and other immigration enforcement actions against anyone who is a member of a household within which resides an unaccompanied alien child (UAC).

While on its surface the section seems to create a huge loophole, the Heritage Foundation clarified that Section 224 is not in fact amnesty because a) it only applies to this year of funding, and b) it doesn’t provide positive benefits like work authorization. The provision is for a defined period of time and those individuals will have to submit for deportation at the end. In addition, there is language included in the section that applies this provision only to information received from the Department of Health and Human Services. The practical effect of this limiting language is that illegal immigrants have a very narrow category of information that may shield them from immigration enforcement actions, but they will remain subject to all other immigration laws, including deportation for other information received by other agencies such as law enforcement agencies.

While certainly not a good provision, Section 224 is very narrow and will likely not result in any significant change to how our immigration laws are enforced.

Resources:

The Heritage Foundation: Trump Has a Strong Legal Argument That He Can Declare National Emergency at Border
The Federalist: Trump Is On Solid Legal Ground In Declaring A Border Emergency To Build A Wall
Fox News: What is a ‘national emergency’, and how can Trump use it to fund border wall?