Under United States law, the President has the right to call a national state of emergency if he believes the country is at risk. Generally, most people believe this strict-yet-important system is saved for true crisis scenarios — events like September 9/11, epidemics and other potentially-fatal or devastating events. But that isn’t really always the case.
It may be surprising, but national states of emergency are actually pretty common. So common, in fact, that there are 28 in place as we speak, and we haven’t had a year free of them in over four decades.
But for most of us, national emergencies fall by the wayside. We hear about them in passing, and then swiftly forget they exist as we go about our lives. Not so for Americans reading the news last week, after Trump announced he might use the National Emergencies Act (NEA) to force funding for the wall.
Now, people are talking about what it means to call a national state of emergency in earnest. But as with most things, there is as much conjecture and fake news out there as there is real information. We’ll clarify and tell you what to expect in this post.
- First things first: just what the heck is a “national emergency?” Believe it or not, there isn’t any one exact qualifying factor. Instead, the guidelines stem from 1976, when Congress passed the previously-mentioned National Emergencies Act.
- The act is nonspecific, placing all of the power on the President’s shoulders. Essentially, it’s up to the person serving as President to define exactly what constitutes an emergency at any given time. It was originally put into place to ensure the person in charge of our country could take control if and when a crisis occurred.
- Most presidents save national emergency announcements for the truly dire and emergent. Past incidences have included major environmental disasters, epidemics, high rates of crime, terrorism, and even the proliferation of weapons of mass destruction.
- A significant number of currently-active national emergencies either directly stem from or were later influenced by September 11, 2001. Many of these enact controls or block property (including money, imports, and exports) associated with terrorism. At least one places restrictions on North Korea and North Korean nationals traveling into and out of the country.
Presidents who call for a national emergency also instantly gain access to a number of special, highly-powerful provisions. These provisions are called statutory powers.
Under current US law, there are a total of 123 potential provisions. That’s far too many to list here, but here’s a few examples that show just how much power a national emergency grants.
- 40 U.S.C. § 905 — Waives regulated procedures for notifying local governments and prospective purchasers before buying or selling property in urban areas. This could theoretically be utilized to buy land along urban border zones with less “red tape” or bottlenecks, but it isn’t likely.
- 43 U.S.C. § 155 — Gives the President the right to waive restrictions on the withdrawal, reservation, restriction and utilization of public property if the land is required by the Department of Defense. This is one of the provisions that would give Trump the power to seize public land along the border.
- 7 U.S.C. § 4208 — Waves regulations preventing the government from seizing farmland if the land is needed by the Department of Defense. This is another provision likely to play a key role in building the wall.
- 33 U.S. Code § 2293 — Gives the President the right to “reprogram” federal funding and services in times of crisis. This includes the ability to “apply the resources of the Department of the Army’s civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.” If Trump moves forward with his plan, this is the regulation that will allow him to use Defense Department funding.
Finally, the US Government also maintains the right to exercise eminent domain. This isn’t really a provision; it’s just a part of the code that gives the government the right to seize personal land as long as the owner is appropriately compensated. The government also can’t just go around seizing land for fun; they need to have a good reason before they do it (border security would qualify).
What to Expect
With all of this information in mind, what can you expect to happen if Trump calls a national state of emergency on the 15th? Not a whole lot of instant change. In fact, the President can’t just go willy nilly and use every provision in the book simply because he calls for an emergency at the national level. He still has to tell Congress which provisions he intends to use and how he intends to use them before moving forward.
What is most likely to happen is that Trump will declare a national emergency and announce a plan to use 33 U.S. Code § 2293 to gain funding for the wall. He may also use this provision to “hire” the military to build the wall, too.
As for eminent domain? That’s been a hot topic, but don’t expect Trump to go around stripping rights away from landowners. Most eminent domain cases sit and stew in the courts for years (sometimes decades) before culminating. It won’t really be a viable option for him; rerouting around owned land is far more likely.