Here's what a national emergency could look like

Posted at 11:10 PM, Feb 14, 2019

President Donald Trump intends to declare a national emergency -- a move that could allow the administration to circumvent Congress and unlock money to build his signature border wall, the White House said Thursday.

Trump has been teasing the possibility of a national emergency for several weeks, considering it as a way to pay for his border wall. The spending deal reached by lawmakers this week fell well short of the $5.7 billion he had requested. A national emergency could help make up the difference, though it largely depends on which statutes he invokes.

A national emergency allows Trump to unlock certain funds provided under statutes previously passed by Congress. A draft proclamation reviewed by CNN last month cited Title 10 of the US Code, which paves the way for Trump to dip into a stash of Pentagon funds that are earmarked but have no signed contracts for spending that money.

That would give the President authority to pull from military construction funds and civil works projects, like infrastructure repair projects.

Trump has to notify Congress about where he decides to pull money from, but he does not need approval from Congress, according to congressional aides.

For Trump to invoke Section 2808 , specifically, the emergency would require the use of the armed forces.

In that event, the "Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces."

Congressional aides also told CNN that "there will be legitimate questions about whether building a fence along the border" would be in support of the armed forces, something required when using military construction funds.

However, Trump's decision to deploy active duty troops to the border could provide cover for that.

According to options that had been considered, the administration could pull $681 million from Treasury forfeiture funds, $3.6 billion in military construction, $3 billion in Pentagon civil works funds and $200 million in Department of Homeland Security funds, an official told CNN late last month. It could also include up to $2 billion in counter-narcotics funds.

A White House official told CNN late Thursday night that Trump would announce his executive actions, including a national emergency, at 10 a.m. Friday. The move will allow for about $8 billion for border barriers, and the official said the money would come from:

  • $1.375 billion in the Homeland Security appropriations bill. Congress said those funds cannot be used to build a wall but can be used to construct other types of barriers.
  • $600 million from the Treasury Department's drug forfeiture fund, which would come from an executive action.
  • $2.5 billion in Defense Department's drug interdiction program, which would come from an executive action.
  • Plus $3.5 billion from the Defense Department military construction budget, which would require the emergency declaration.

ABC was first to report on the funding breakdown.

The congressional aides added that the Department of Defense will select which projects to draw from and Congress will not be involved.

"It will be a DoD action, we in Congress will not have a say," they said. "The law doesn't say he has to tell us which project but you can be sure we will be asking that question"

The proclamation likely wouldn't make the path forward any easier.

House Democrats, for one, are expected to pursue legal challenges in the event of a national emergency proclamation. In a press conference Thursday, Speaker Nancy Pelosi denounced the notion that the situation along the border is an emergency, adding that Democrats are reviewing their options.

The House can argue, for example, that the situation along the border is not a national emergency, according to Robert Chesney, who teaches at the University of Texas at Austin School of Law. But chances of succeeding are slim, given that the definition of a national emergency is vague.

The follow-up then is whether the statutes that allow the President to dip into funds without congressional approval are properly invoked. That, too, may be difficult for Democrats to win on.

Landowners along the border whose property is at risk of being seized, on the other hand, have a greater chance at mounting a successful challenge. All 55 miles included in the agreement reached by lawmakers is in the Rio Grande Valley, where much of the land is privately owned.

In any case, if the declaration is made, the US Army Corps of Engineers would likely be deployed to construct the wall.

The Pentagon has assisted the Department of Homeland Security in the past. For example, the Army Corps has helped evaluate prototypes of the border wall.

During his presidency, Trump has repeatedly looked to the Defense Department for assistance along the border. In the run-up to the 2018 midterm elections, the administration deployed more than 5,000 troops to the border, and more recently, aviation support and assistance with installing concertina wire. Trump also previously flirted with the idea of the Defense Department fronting money for the wall.

Trump has argued that an increase in border apprehensions necessitates a wall and additional reinforcements to stem the flow of migrants. According to federal data, Customs and Border Protection apprehended nearly 400,000 people along the southwest border in fiscal year 2018, an increase from fiscal year 2017, but a decrease from fiscal year 2016 figures.