On Friday, President Trump announced the declaration of a national emergency in order to collect what he believes is the appropriate amount of funding for a southern border wall.
According to a press release from the White House, the president will allocate approximately $8.1 billion in funding from, but potentially not limited to, the following three sources:
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)
During a speech on Friday, Trump stated in part:
[A national emergency has] been signed many times before. It’s been signed by other presidents. From 1977 or so, it gave the presidents the power. There’s rarely been a problem. They sign it; nobody cares. I guess they weren’t very exciting. But nobody cares. They sign it for far less important things in some cases – in many cases. We’re talking about an invasion of our country with drugs, with human traffickers, with all types of criminals and gangs…
And by signing the national emergency, something signed many times by other presidents many, many times – President Obama, in fact, we may be using one of the national emergencies that he signed having to do with cartels, criminal cartels. It’s a very good emergency that he signed, and we’re going to use parts of it in our dealings on cartels. So that would be a second national emergency. But in that case, it’s already in place.
And what we want – really want to do is simple. It’s not like it’s complicated. It’s very simple. We want to stop drugs from coming into our country. We want to stop criminals and gangs from coming into our country…
When asked by a reporter about the constitutionality of his order, as well as the precedent it could set, Trump said that “the courts will determine that,” and that he expects “to be sued.”
He added: “We have an invasion of drugs and criminals coming into our country that we stop, but it’s very hard to stop. With a wall, it would be very easy. So I think that we will be very successful in court.”
Trump then noted that former presidents have declared national emergencies in the past, which he cited as the creation of precedent.
Several conservative Republican lawmakers have voiced concern with the president’s actions.
On Thursday, Sen. Marco Rubio (R-FL) stated:
We have a crisis at our southern border, but no crisis justifies violating the Constitution. … Today’s national emergency is border security. But a future president may use this exact same tactic to impose the Green New Deal. I will wait to see what statutory or constitutional power the President relies on to justify such a declaration before making any definitive statement. But I am skeptical it will be something I can support.
Sen. Ted Cruz (R-TX) slammed the bipartisan funding bill, but noted that he would wait to evaluate the legal grounds on which the president declared an emergency before making a judgement:
Democrats’ intransigence has left the president with no other choice but to take executive action. I am a constitutionalist, and I have long advocated that every president, Republican or Democrat, be bound by the Constitution and federal laws. I will wait to see what specific course of action the president pursues and what legal authorities are cited as a basis for it.
On Friday, Sen. Rand Paul (R-KY) stated:
I, too, want stronger border security, including a wall in some areas. But how we do things matters. Over 1,000 pages dropped in the middle of the night and extraconstitutional executive actions are wrong, no matter which party does them.
Sen. Mike Lee took a slightly different approach, saying that his “initial assessment is that what President Trump announced is legal.”
However, he added, “whether or not it should be legal is a different matter. Congress has been ceding far too much power to the executive branch for decades. We should use this moment as an opportunity to start taking that power back.”
The laws President Trump specifically cites in his White House press release are 10 U.S. Code § 284 – Support for counterdrug activities and activities to counter transnational organized crime, and 10 U.S. Code § 2808 – Construction authority in the event of a declaration of war or national emergency.