PRESIDENT TRUMP’S assertion that he might sidestep Congress and get funds for a border wall by declaring a national emergency has sent lawyers, legislators and journalists scrambling to figure out whether he actually possesses the legal authority to do so. What they’ve found, in part, is that Congress has delegated a surprising amount of emergency or quasi-emergency power to the executive branch over the years, possibly too much. The implications for constitutional government are potentially serious. Whatever happens with Mr. Trump and the wall, therefore, this body of law is long overdue for a review, and not by the courts but by the body that created it — Congress.
The Brennan Center for Justice has compiled a list of 123 statutes that enable the president to circumvent ordinary lawmaking processes upon the declaration of a “national emergency,” including the statutes Mr. Trump seems most likely to cite if he goes for a wall-building without new appropriations from Congress: two provisions that allow the Pentagon to reshuffle existing military construction funds and redirect them to previously unauthorized purposes in the event of a national emergency. Some of the other laws on the Brennan list are obvious relics: Did you know that the president can press the Fort McHenry National Monument back into military service in an emergency? Many of the provisions on the Brennan list appear never to have been invoked. Still, the laws have real-world impact: Many economic sanctions, past and present, were declared by the president, citing “national emergencies” under the International Emergency Economic Powers Act. Mr. Trump’s tariff war on steel imports is being waged under the authority of a trade law known as Section 232 (not on the Brennan list) that allows the imposition of levies when the executive branch decides “national security” requires it.
