On February 15th, 2019, President Donald Trump declared a national emergency in an effort to secure $8 billion in funding for a wall on the southern US border. This was met with harsh criticism from prominent Democrats, wavering support from Republicans, and a slew of lawsuits challenging his reason for the declaration. How has Trump handled the criticism? Will the national emergency hold up in the Supreme Court? Will congress pass a resolution to nullify his declaration? Before answering these questions, let’s first delve into what a national emergency is. 

The term ‘national emergency’ may sound urgent or even worrying to most people, but what exactly does it mean?

National emergencies fall under the same powers as an executive order. Trump has used this executive order authority many times in his presidency, but a national emergency declaration does come with some pitfalls. National emergencies can be negated by both Congress or the Supreme Court; the passing of new legislation can nullify the executive order, or it can be overturned by the Supreme Court through judicial review.

Although a national emergency can be overturned, Trump is still allowed to initiate one if he feels that it may be necessary. This is where the conflict arises. For a national emergency declaration to be upheld, there must be a credible threat that requires an immediate response. When justifying his February 15th emergency declaration, Trump explained that both violent illegal immigrants and drugs are flooding into the US through the Southern border due to the lack of a physical barrier. In this same tweet, posted on December 27th and since then has been deleted, Trump also criticized Democrats for taking too long to see the dangers of a vulnerable US southern border. Trump claimed that “Walls work 100 percent,” in being able to protect the American people from these two threats to the public. His opponents argue otherwise, claiming that there is no emergency at our southern border. The claim that hordes of drugs are flooding into the US over the southern border have been partially debunked, as data from the Drug Enforcement Agency (DEA) shows that the overwhelming majority of drugs enter the US through legal ports of entry.  Although these figures don’t account for drugs that don’t get confiscated, it can help show us the trend of where the drugs enter the country. The majority of illegal drugs enter the US through legal ports of entry, as evident in a major drug bust in Newark Port on March 11th. 

Even more worrying is that some Democrats view Trump’s emergency declaration as an attempt to bypass Congress’ authority to allocate money as granted by the Constitution. Trump’s emergency declaration is legal under the National Emergencies Act (NEA), which gives the president special powers. George W. Bush made use of the NEA when he authorized the US to take military action to protect all US citizens after 9/11. Donald Trump has made it clear that he plans on using the funds secured by the national emergency to build a border wall with Mexico.

Prior to his national emergency declaration, he attempted to reach the same goal through a government shutdown,one which became  the longest in US history. It lasted from December 22nd 2018 to January 25th 2019, and left hundreds of thousands of government employees without pay for almost 5 weeks. The purpose of the shutdown was to force Democrats in the House of Representatives to compromise by giving him funding for the border wall in exchange for protection of DACA. This partially worked, but Trump only secured $1.375 billion instead of the $5.7 billion dollars that he wanted.

Due to this shortfall, Trump then declared a national emergency to secure all of the funding he initially desired. As evident in the government shutdown, Congress was not overwhelmingly supportive of allocating funds to build a wall. So what can the other branches of government do to keep Trump’s national emergency declaration from taking affect?

Congress can pass a resolution that nullifies the national emergency, but this forces any resolution to be a bipartisan effort as it must pass through both chambers. Once passed by Congress, the president is allowed to veto the resolution, then forcing Congress to vote again. This time around, both chambers of Congress would need a 2/3 majority in order to pass the resolution. Only with a 2/3 majority vote would the resolution finally end the national emergency.

The Supreme Court can also terminate a national emergency, but this rarely happens. The Supreme Court can exercise their power of judicial review and see if the emergency declaration conflicts with the Constitution. If it does, they would then declare the national emergency unconstitutional; but if the national emergency does not infringe on Constitutional rights, the Supreme Court can’t stop it from going through.

A resolution to nullify Trump’s national emergency has already passed the House of Representatives and is scheduled to be voted on in the Senate as early as March 11th. Although Trump can veto a resolution the first time, if there is enough bipartisan opposition, the separation of powers between Congress and the president can be restored.