News Brief: Can Trump Declare a National Emergency to Fund Border Wall?

Trump National Emergency

News Brief: Can Trump Declare A National Emergency to Fund Border Wall?

January 8, 2019


In December, President Donald Trump threatened to force a government shutdown in a desperate attempt to fund his border wall. A hallmark of his 2016 campaign, Trump has relentlessly sought funding for a U.S.-Mexico border wall since taking office. But, since his inauguration, full funding and support has alluded the president. Despite attempts by both Republicans and Democrats to properly fund the government and pass a bipartisan spending bill, on December 22 the federal government was placed into a partial shutdown by the president. We reported about the potential for a shutdown in mid-December (read the article here).

Shutdown Continues into Third Week

Several weeks later, the shutdown continues, reaching its third week with no predictable end. As each day passes, it has new effects on the government, its employees, and the American populace. For example, immigration case backlogs continue to worsen because the shutdown furloughed over 300 immigration judges. Additionally, essential food programs like the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) may stop should the shutdown continue for much longer. In addition to the above, CNN describes some unique ways the shutdown is affecting Americans here.

New Possibility, According to President

According to CNN, throughout the last few weeks, discussions between the Trump administration, including Homeland Security Secretary Kristjen Nielsen, and Democrats have often become “combative.” It appears that Democratic leaders and Trump officials disagree not only on political opinion, but on facts. During a presentation by Nielsen, Speaker of the House Nancy Pelosi questioned the validity of border security facts presented.

On Friday, a new possibility emerged regarding the shutdown and the border wall crisis. A new House, invigorated with diverse members elected during the 2018 midterm elections, has stood strong against the president’s demands for funding. Yet, Trump announced he may force his immigration agenda regardless of Congress’s opinions or approval. That questionable move has made front-page news across America.

The president threatened to declare a national emergency should Congress continue to allocate any less than $5.6 billion for border wall construction. Regarding justification, the president said, “we can call a national emergency because of the security of our country.”

But, can President Trump truly declare a state of emergency in order to use military funds for border wall purposes? In this article, we’ll explore what might happen should Trump take this route.

Presidential Power and “National Emergencies”

Those who crafted the Constitution developed a firm system dependent upon balance of power. The executive, judicial, and legislative branches all have checks and balances on each other. This prevents any one branch of the government from wielding too much power or authority. In a democracy, this is especially important if the government is to survive without yielding to autocrats and demagogues.

Congress Has the Power of the Purse

As explained by Reuters, if Trump challenges the “purse-strings” power of Congress, he is upsetting the delicate balance set by the Constitution. While it is not unheard of for presidents to use emergency powers, Trump’s utilization would be unprecedented. Presidential power to make quick and executive decisions during emergencies is intended for true crises, like natural disasters or war. Utilizing such powers for a non-emergency would push the limits of the Constitutional rights of the executive branch.

Court Challenges Nearly Guaranteed

Human rights groups like the American Civil Liberties Union (ACLU) are likely to immediately challenge any emergency declaration by Trump. The current administration would likely be forced to legally prove there is an actual emergency at the border. Additionally, lawsuits would likely challenge the president’s true authority to take such an action, considering Congress’s powers and traditional role.

A Harvard law professor told Reuters such action would be a “very aggressive use of presidential authority.” Yet, he added that the simple fact that the move would be aggressive doesn’t make it illegal. It would, though, “go beyond the boundaries of what has been done before.”[1]

The Final Answer

In conclusion, the president can in fact declare a national emergency in order to fund the U.S.-Mexico border wall.

That does not mean, though, that the action wouldn’t be later prevented or blocked by the legislative branch or the courts. The action would surely be swiftly challenged by rights groups via the judicial system. Again, two areas of weakness exist within the president’s plan, highlighted by Reuters. First, he must prove that an actual emergency exists at the border, which will prove a challenging task legally. Second, lawsuits would likely question and challenge the breadth of the president’s control over taxpayer dollars.

The coming weeks will reveal what will happen regarding the ongoing government shutdown, the border wall, and Trump’s presidential legacy.

Contact an Austin Immigration Attorney

The president’s immigration policies and plans for the U.S.-Mexico border can alarm and even unsettle citizens and immigrants alike. If you have any legal questions about your right to live and work in America, talk to an immigration attorney. Only an expert lawyer certified by your state’s bar association can provide proper legal assistance. Nanthaveth & Associates passionately and skillfully serves clients in Austin, Texas.

Despite the uncertain political landscape, you can make strides to secure the future. If you have any legal question or concern, contact us immediately – we are ready to help. You can sit down with one of our skilled attorneys during a free initial consultation.


[1] Gibson, G. (2019, January 7). Explainer: Trump’s emergency threat on wall risks dual legal challenge. Reuters.Retrieved from