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Why Trump declaring a border wall emergency may prove more of an obstacle for himself

The US president’s wall is far from a sure thing even now.

The border fence in El Paso, Texas.
The border fence in El Paso, Texas.
Image: PA Images

US PRESIDENT DONALD Trump has done what he has been threatening to do for months, by declaring a national emergency in an attempt to get his much-promised border wall built.

The demand for the wall precipitated the recent government shutdown and although another shutdown has been averted, Trump has now escalated the dispute in pursuit of the wall.

The deal struck in Congress to fund government and avoid the shutdown includes almost $1.4 billion for fences and barriers along the southern border.

The amount is far short of the $5.7 billion required for the wall envisaged by Trump.

To get around this shortfall, the president will have to tap funding that does not require the approval of congress and this is where the declaration of a national emergency comes in.

The move is a significant use of executive power, is divisive in his own party and been described as an abuse of power by Democrats.

But what does it mean for Trump’s presidency and the wall itself?

Emergency act

The 1976 National Emergency Act essentially grants a president special, temporary powers allowing them to deal with a crisis.

Since it was introduced it has been used 58 times, but mostly to deal with foreign problems.

In many cases, the powers are used to freeze foreign or terrorist assets or to block imports from certain countries, such as conflict diamonds.

In the case of President Barack Obama, the only national emergency declaration not related to foreign policy was when one was declared to deal with the H1N1 flu pandemic.

When a president declares a national emergency, they are required to specify exactly which powers they intend to use.

In this case, the powers most useful to Trump would be those to direct the armed forces and to shuffle military construction funds.

Military construction accounts are used for the upgrade of bases and facilities and the Associated Press reports that there could be $21 billion available there.

But using this kitty for the wall could meet resistance, with the money often going towards improvements to housing, roads, hospitals and other facilities.

Not to mention the problem Trump could face from Republicans representing districts with military bases if money is taken away from those facilities.

The move would also go against long-held Republican principles of reducing rather than expanding the powers of federal government.

In addition, the use of emergency funding to build the wall is also likely to be vigorously contested in court.

House Speaker Nancy Pelosi said Democrats are “reviewing our options” about how to respond to Trump’s move but described it as “a lawless act” and “a gross abuse of the power of the presidency”.

A challenge to the action could prove to be a major headache for the president, if precedent is anything to go by.

As Vox points out, during Obama’s presidency Trump had tweeted opposition to Obama’s executive moves to give protections to immigrants facing deportation.

In that case, Obama’s moves fell foul of the courts and one of the key arguments was that the policies attempted to usurp the role of Congress. That same argument would almost certainly be used in court actions against Trump’s national emergency declaration.

Speaking in the White House Rose Garden, Trump himself acknowledged that legal challenges are inevitable. 

“I expect to be sued, but I think we will win,” he told reporters. 

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About the author:

Rónán Duffy

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