Fred Henneke, Attorney & Counselor-At-Law


First of all, a brief primer on the National Emergency Act.

Congress passed the National Emergency Act in 1976 in recognition of the perceived need for the President to have certain powers in the event of an emergency. The NEA terminated all previous national emergencies and formalized the process for the President to declare a national emergency and exercise  additional powers.  The NEA lists 136 emergency powers available to the President; however, only 13 require Congressional action. In the declaration of the national emergency, the President must specify the powers to be exercised. Congress can disapprove the President’s action by passing a joint resolution within 90 days of the declaration, which can be vetoed by the President. The resolution is first considered in the House of Representatives; if the House passes the resolution of disapproval, it goes to the Senate where it must be put to a vote (it cannot be filibustered). If the resolution passes both chambers and is vetoed by the President, the veto can be overridden by a 2/3rds vote in both chambers. The declaration must be renewed by the President annually. Congress has never successfully disapproved a declaration of national emergency.

Since the passage of the NEA, a national emergency has been declared 59 times, 31 of which are still in effect President Trump has three national emergency declarations still in effect – December 20,2017 for sanctions against persons or entities violating the human rights of the Rohingyas, September 12, 2018,for sanctions against foreign persons or entities interfering in our elections, and November 11,  2018 for sanctions against persons violating human rights in Nicaragua. The official title of the pending emergency is The National Emergency Concerning the Southern Border of the United States; its purpose is to re-allocate appropriated funds to build a wall on the Southern border. It is the first time a national emergency declaration has attempted to use funds previously allocated for a different purpose to the stated purpose which Congress has already considered..

Several lawsuits have already been filed to block the President’s action, including one by 16 states only two of which are on the Southern border. These suits have a significant hurdle to jump in order to progress beyond the early stage of the proceeding. That hurdle is called “standing”. In order to sue someone, the person or entity bringing the suit must have been actually injured by the action they are complaining of. In other words, they must have “skin” in the game. . It will be difficult at best for California, New Jersey, etc., to show actual – not potential or future- injury as a result of this declaration.

Individual landowners along the Southern border may bring suit  However, the Federal government already has the power of eminent domain, which means they can seize the property of an individual for a public purpose IF they pay the landowner a  fair price for that property. No injury, no standing.

The House of Representatives may have standing. Article I, Section 9 of the Constitution states “No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law.”. The Republican members of the House of representatives successfully sued President Obama over a provision in the Affordable Health Care Law (“Obamacare”) giving insurance companies funds to make up some of their early losses because no funds had been appropriated by Congress for such purpose. In this instance, the President is seeking to use funds appropriated for different purposes to build the Wall – i.e., unappropriated funds. I have no idea whether the Democrat members of the House, should they sue, will prevail, but at least they should have standing.

One issue that is certain to come up in any suit that survives the standing challenge is the question of the “emergency”.The President cites statistics of drugs and gangs and human trafficking along and through the Southern border to support his emergency. Are these severe enough to constitute an emergency, and what impact will a wall have on them? For instance, DEA statistics show that 80-90% of all drugs come through legal ports of entry, not across the border; how will a Wall along the border keep those drugs from entering the US? Furthermore, the President himself said in his announcement that he didn’t have to declare the emergency; that he could have waited and done it the slow way, but he didn’t want to wait. Will the courts look past those pronouncements to find a common definition of emergency?

One further point I wish to make and that is the abdication by Congress to the Executive of constitutional powers. The way the NEA is structured renders Congress virtually powerless and then only in a reactive sense. I agree that in a limited set of circumstances the President should have the authority to act quickly and decisively. But only for a limited time and only with certain constrained authority. Give him or her the ability to act, but require that such action be affirmatively ratified within a certain period – 90 or 120 days. In a true emergency – a 9/11 scenario – there is little doubt but that Congress would approve of swift and bold action by the President, but only after an opportunity to examine it and act as the Constitution envisioned. There are few things more urgent in today’s Washington than for Congress to re-claim its Constitutional place in our government.

The Founding Fathers decisively and intentionally moved away from any hint of a monarchial power arrangement. Congress should not by inaction create such a de facto power imbalance.


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