#FakeEmergency: Tell Congress to Override Trump’s Veto

Above: Nogales, Arizona, where city officials are demanding the federal government remove the razor wire it recently added to the border wall separating it from Nogales, Mexico. Image by Jonathan Clark. 

THE ISSUE

After Congress refused three times to approve new tax-payer funds for a border wall, Trump bypassed the branch by declaring a national emergency. The move is highly unpopular and possibly unconstitutional because there is no evidence that an emergency exists, it directly opposes the fiscal directives of Congress, snatches money from military construction projects across the country, and would result in the government seizing private land. The lawsuits have already begun to fly. Both the House and Senate have now passed a bipartisan joint resolution to repeal the emergency declaration. All of Maine’s congressional delegation voted in favor of it. Trump is now expected to veto the resolution. Although it’s unlikely that congress will have enough Republican support to override the veto, the easy passage of the bill in both chambers will be used to demonstrate congressional will in the lawsuits. Find action and read more in our explainer, below.
 

THE ACTION

• Call or email your reps to thank them for their support of the resolution. Ask them to build additional support to override Trump’s veto. Use information found in our explainer to craft your message. Find their contact information.

THE #FAKEEMERGENCY, EXPLAINED
 

Why did Trump declare a national emergency?

On Feb. 15, Trump declared a national emergency to obtain funding for a wall on the southern U.S. border he once claimed would be paid for by Mexico. The action came after Trump failed to convince a Republican-controlled Congress to fund his wall in 2017 and 2018, and a divided Congress in January 2019, the latter leading to the partial government shutdown he said he was happy to claim. His justifications for a border wall have been proven false and Trump admitted moments after announcing the declaration that the declaration was, in fact, unnecessary. 

What is a national emergency?

The 1976 National Emergencies Act (NEA) and various U.S. laws allow a president to redirect funds allocated for one purpose to other projects related to a “national emergency.” Unfortunately, Congress never defined what constitutes a “national emergency.” Other presidents have declared them: Pres. Bush declared an emergency following the 9/11 attacks and Pres. Obama issued one during the 2009 H1N1 influenza pandemic that killed more than 12,000 Americans. But no president has used the NEA to circumvent the normal appropriations process after Congress has explicitly denied funding to a president’s pet project. As a result, this will be challenged in the courts. 

Where will money for the wall come from?

The administration is planning to redirect spending in three categories, two of which do not require a declaration of national emergency. One of these is the Treasury Forfeiture Fund, which consists of money seized by the government from law enforcement activities or from selling assets seized from these activities. Another category is funding used to fight drug smuggling. The third funding source is money allocated to military construction projects. This category does require a declaration of national emergency and could affect projects planned all over the country. Mainers who work at the Portsmouth Naval Shipyard may be affected if the $150 million allocated for construction projects there is reallocated to the wall. 

Can Congress stop a declaration of emergency?

The NEA established procedures by which Congress can terminate a declaration of emergency by passing a “joint resolution of disapproval.” The resolution easily passed in both the House and the Senate (all of Maine’s members of congress supported it). Now it goes to Trump, who is expected to veto it. Many experts think it’s unlikely that Congress can muster the 2/3 majority needed to override a veto.  Keep track of where each Senator stands on the issue HERE. 

What else can Congress do?

Other than a resolution of disapproval, Congress has some additional options for preventing the diversion of funds to the wall. It could enact legislation that revokes any of the rules the administration is relying upon (the ones giving him powers to divert specific funding in an emergency) or limit funds it has appropriated from being used for a border wall. Both of those options would require a veto-proof majority. The strongest tool might be the inclusion of relevant prohibitions in an omnibus spending bill, such as the National Defense Authorization Act, which will likely receive a vote in the fall. Congress can also bring scrutiny to this declaration through its oversight powers. The House Judiciary Committee has already announced an investigation.

What about the legal challenges?

Several lawsuits have already been filed or announced, including by the ACLU, the Citizens for Responsibility and Ethics in Washington (CREW), and the Attorney General of California (joined so far by more than a dozen states, including Maine). Lawsuits are also expected from private property owners along the border to prevent the federal government from seizing their lands. It is likely that at least one federal judge will issue an injunction halting wall construction, at least pending a court decision. It is also likely to take years to resolve these cases. The issue could end up in the Supreme Court — or the clock could run out if the issue isn’t resolved before a new president is elected.

What can constituents do about it?

Right now, the most important thing you can do is thank the members of congress who voted to support the resolution of disapproval and ask them to encourage others to join them in overriding Trump’s veto. Check out our explainer on why a border wall is not the right solution for slowing migration, undocumented immigration, or drug trafficking. It also shows how Trump’s claim of a national security emergency at the Southern border is entirely unfounded.  Use the information found there as well as in this explainer to write a letter to the editor and to speak out on social media.