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Can Trump declare a national emergency to get a border wall?

The president says he has an "absolute right" to do so, but legal scholars and lawmakers are split.

President Donald Trump speaks as he tours the

President Donald Trump speaks as he tours the U.S. border with Mexico at the Rio Grande on the southern border, Thursday, in McAllen, Texas, as Sen. Ted Cruz, R-Texas, listens at right. Photo Credit: AP/Evan Vucci

WASHINGTON — President Donald Trump has increasingly raised the prospect of declaring a national emergency to expedite the use of federal funds to build a southern border wall, his comments this week coming as the federal government shutdown stretches toward its fourth week over an impasse on border wall funding.

"I have the absolute right to declare a national emergency,” Trump told reporters outside the White House on Thursday. “The lawyers have so advised me. I'm not prepared to do that yet, but if I have to, I will. I have no doubt about it. I will."

Lawmakers and legal scholars have been split on whether the president can use the broad powers of the National Emergencies Act to push forward construction on a border wall if congressional Democrats continue to block his $5.7 billion demand for the wall. Meanwhile, White House attorneys have been preparing legal arguments to bolster the president’s case that there is a national security and humanitarian crisis along the U.S.-Mexico border that requires swift action.

Asked if he was prepared to defend a national emergency declaration against the possibility of multiple lawsuits, Trump told reporters Thursday: “I’m prepared for anything.”

What is the National Emergencies Act?

The National Emergencies Act, passed by Congress in 1976, gives presidents the broad authority to take action in a crisis, and redirect federal funding previously approved by Congress.

The act does not restrict what the president can declare as an emergency, but it does provide for some checks and balances, allowing Congress the opportunity to revoke the order with a two-thirds majority of both chambers, according to the nonpartisan Congressional Research Service.

The emergency declarations expire after a year if not renewed by Congress. The declarations, which have been used following the Sept. 11 terrorist attacks, after the Iran hostage crisis and amid the 2009 swine flu outbreak, are routinely renewed. Thirty-one of 58 states of emergency that have been declared since the law was enacted are still in effect, according to a review by the Brennan Center for Justice.

What would happen if Trump declares a national emergency?

By doing so, Trump would have the ability to reallocate federal funds previously designated for other projects.

Some proposals reportedly being weighed by the White House include tapping into military funding designated for military construction, or using money for water resource development projects, according to Politico.

Harvard law professor Mark Tushnet told NBC News, “My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground.”

But Yale Law School professor Bruce Ackerman offered a different take in a Washington Post op-ed, saying Trump could not direct military funds to build the wall because “American constitutional tradition has profoundly opposed the president’s use of the military to enforce domestic law.”

What do lawmakers say?

Republican and Democratic lawmakers alike have raised reservations about Trump declaring a national emergency over border security, several citing decreasing levels of illegal border crossings to question whether there is a crisis. Apprehensions have dropped from a high of more than 1.6 million in 2001 to 396,579 in 2018, according to Customs and Border Patrol Data.

Rep. Adam Smith, chairman of the House Armed Services Committee, told MSNBC on Wednesday that if Trump declared a national emergency, Democrats and other groups would sue.

“I don’t think this falls under the heading of a national emergency,” said Smith (D-Washington).

Sen. John Cornyn of Texas, the No.2 ranking Senate Republican, speaking to CNN, said he was confident Trump could declare a national emergency, but cautioned that doing so could expose the Trump administration to a drawn-out legal battle.

"What that may mean in terms of adding new elements to this — in terms of court hearings and litigation that may carry this on for weeks and months and years — to me injecting a new element in this just makes it more complicated," Cornyn said.

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