Can Trump declare emergency to build his wall?
The Trump administration is weighing using a national emergency declaration to circumvent Congress and the budget stalemate and force construction of the president's long-promised southern border wall.
"We're looking at a national emergency because we have a national emergency," President Donald Trump told reporters Sunday amid stalled negotiations. He said during a press conference Friday that he would prefer to win the money he's demanding via Congress, but could "absolutely" call an emergency "and build it very quickly".
Such a move would be a dramatic escalation of the current showdown, which has forced a partial government shutdown that's now in its third week.
The administration has spent months trying to figure out how the president might be able to move forward with the wall - the central promise of his 2016 campaign - if Congress refuses to give him the money.
As early as last March, Trump was publicly floating the idea of using the military for the task. "Building a great Border Wall, with drugs (poison) and enemy combatants pouring into our Country, is all about National Defense. Build WALL through M!" he tweeted then.
But it's Congress - not the president - that controls the country's purse strings and must appropriate money he wants to spend.
Enter the emergency declaration, an option the White House counsel's office is currently reviewing. Among the laws Trump could turn to is Section 2808 of the Title 10 US Code pertaining to military construction.
According to the statute, if the president declares an emergency "that requires use of the armed forces," the defence secretary "may undertake military construction projects, and may authorise 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".
Pentagon budget officials are analysing the 2019 construction budget to determine how many unobligated dollars would be available to use for the wall if Trump settles on a declaration. Under the provision, only those construction budget funds that are not already obligated to other construction projects could be used for the wall.
There are more than 100 such provisions giving the president access to special powers in emergencies. And Congress has typically afforded the president broad authority to determine what constitutes an emergency and what does not, said Elizabeth Goitein, co-director of the liberty and national security programme at the Brennan Center for Justice.
"Absolutely, it's an abuse of power for the president to declare a national emergency when none exists and to use it to try to get around the democratic process," she said. "But we are in a situation where our legal system for emergency powers almost invites that kind of abuse."