ABKLaw BLOG: “I am declaring an emergency”/ “I didn’t have to do this now”

BLOG from our #ABKLaw Partner Hon. Barry Kamins: “I am declaring an emergency”/ “I didn’t have to do this now”

With those two diametrically opposed statements, President Trump declared a national emergency last week to try and build a border wall. Forty-three years ago, Congress enacted the National Emergencies Act that created a process presidents must follow when invoking the statute to declare an emergency. The law has been invoked about 60 times since the Carter administration and the President’s use of this power is unlike any other prior invocation of the statute. The overwhelming majority of those instances were actions taken by former presidents to impose sanctions on various foreign officials for wrongdoing, such as a violation of human rights. None of the emergencies in the past were declared in order to make an end run around Congress, when Congress had voted not to spend funds on a particular project that the President wanted.

One problem is that the statute does not define what qualifies as an “emergency”. This could prompt Congress–at least in a post- Trump era- to impose a strict definition of the term. Ironically, because the statute fails to define the term “emergency”, the President may actually possess the legal authority to take the action he is taking. Therefore, the courts may-or may not strike down his exercise of power.

What is next?

Under the Act, the House and Senate can vote on a joint resolution of termination to end the emergency status. If one chamber passes such a resolution, the other must bring it up for a vote within 18 days. The President can veto such a resolution as long as it has not passed with super majorities in both the House and Senate.

On another front, the Democratic- run House can support a lawsuit challenging the emergency declaration brought by a third party or it could sue on its own although there are legal questions on whether they have the standing to do so.

Stay tuned.

 

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