Editor's note: This story was updated Friday, Feb. 15, 2019.
US President Donald Trump declared a national emergency over border wall funding Friday, Feb. 15, making this the country's 32nd on-going state of emergency. The same day, Trump also signed a hard-negotiated bipartisan Congressional spending bill, which many hoped would mitigate an emergency declaration. But the bill falls $6.5 billion short of what the president wanted for a wall on the US-Mexico border.
Declaring a national emergency to appropriate funds for a border wall has been one of the few ways out of the political stalemate, which resulted in a 35-day partial government shutdown over wall funding during December and January — the longest shutdown in US history. Approving the spending bill while declaring the emergency averts a second shutdown, but the administration is already being sued just hours after Trump's annoucement. Legislative responses could follow. Critics are also concerned about the precedent this move will set for future administrations.
“There absolutely will be legal challenges and so this is not an easy path for the president to take by any means. It's not like he can snap his fingers, say 'there's an emergency' and get it done,” Elizabeth Goitein, co-director of the Liberty and National Security Program at New York University's Brennan Center, told The World last month.
Still, even if the president's action over appropriating funds for the border wall is blocked, the US will technically remain in crisis. There are an another 31 active national emergencies in the US right now — including an additional three that have been declared under Trump, and one that dates back to Jimmy Carter's administration in the late 1970s.
What qualifies as a national emergency? No one really knows — there is no clear federal definition. But a declaration does give the president special and far-reaching powers, including those that would normally be illegal. Under the National Emergencies Act of 1976, the president is required to specify which of the 136 statutory powers they want to use, but these powers don't have to match the emergency identified. That means, for example, Trump could conceivably use a national emergency to control communications systems — including the Internet — in addition to appropriating Department of Defense funds to build a wall along the southern border.
“It's almost a certainty that we would see misuses, abuses of emergency powers,” says Goitein. “My concern is that it could be the kinds of abuses that really could undermine our democracy.”
Some have argued the president's own announcement of the declaration undermine the need for a national emergency. "I could do the wall over a longer period of time. I didn't need to do this," he said. "But I would rather do it much faster."
There are some differences between Trump's declaration and most of the continuing states of emergency declared over the past 39 years. Trump's executive order points to his determination of a national security situation on the US border — most others (but not all) states of emergency have responded to humanitarian and political threats abroad: for governmental human rights abuses, terrorism, regional destabilization or recruitment of child soldiers. Many of these orders provide authorization for sanctions and work in tandem with the International Emergency Economic Powers Act of 1977, which gives the president authority to regulate commerce during a national emergency.
Of the other 31 national emergencies still active, several also point to explosive conflicts happening today. Six years ago, President Barack Obama issued a state of emergency after the Arab Spring uprising in response to Yemeni governmental actions threatening “Yemen's peace, security and stability” and rejecting “a peaceful transition of power that meets the legitimate demands and aspirations of the Yemeni people for change.” Today, Yemen faces the world's largest humanitarian crisis.
Bush's 2001 declarations in response to the 9/11 attacks also still exist — but giving the president years-long special powers isn't what the NEA was designed for.
After a national emergency is declared, it can only be ended by a presidential proclamation or by Congress. These emergency powers are intended to be temporary — a stopgap until Congress can act. But this check has “been entirely ignored,” Goitein says. “Congress has never voted on whether to end a state of emergency.”
Where are we now? Here's a list of the current active national emergencies, from the most recent to the oldest — 39 years.
Friday, Feb. 15, 2019: Trump declares a national emergency on the US southern border to appropriate funds for a border wall.
Nearly 3 months:
Blocking Property of Certain Persons Contributing to the Situation in Nicaragua (Nov. 27, 2018), which targets elites in Nicaragua, in response to President José Daniel Ortega's crackdown on a popular uprising and human rights abuses.
Imposing Certain Sanctions in the Event of Foreign Interference in a United States Election (Sept. 12, 2018), which gives intelligence agencies 45 days after an election to establish whether interference occurred and trigger potential sanctions.
Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption (Dec. 20, 2017), which targets corrupt actors and human rights abusers. This executive order is tied to the Global Magnitsky Human Rights Accountability Act, which Congress passed in 2016.
Blocking Property of Certain Persons Contributing to the Situation in Burundi (Nov. 23, 2015), which targets individuals in response to violence against civilians and political repressions in the East African country.
Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities (April 1, 2015), which targets individuals using cyber capabilities for economic corruption or infrastructure damage. The order also signaled that access to US markets could be tied to good cyber behavior.
Blocking Property and Suspending Entry of Certain Persons Contributing to the Situation in Venezuela (March 9, 2015), which targets elites involved in human rights abuses and corruption in Venezuela.
Blocking Property of Certain Persons Contributing to the Conflict in the Central African Republic (May 12, 2014), which targets individuals in response to inter-sectarian violence, including the recruitment of child soldiers.
Blocking Property of Certain Persons With Respect to South Sudan (April 3, 2014), which targets individuals in response to violence and human rights abuses, and specifically including those against women and children in South Sudan.
Blocking Property of Certain Persons Contributing to the Situation in Ukraine (March 6, 2014), which is connected to sanctions in response to Russia's incursion on Ukrainian sovereignty, including the annexation of Crimea.
Blocking Property of Persons Threatening the Peace, Security, or Stability of Yemen (May 16, 2012), which targets certain members of the government of Yemen and others in response to threats against peace and stability after the Arab Spring uprising.
Blocking Property of Transnational Criminal Organizations (July 25, 2011), which targets organized crime syndicates like the Yakuza (Japan) and the Camorra (Italy).
Blocking Property and Prohibiting Certain Transactions Related to Libya (Feb. 25, 2011), which targets elites in Libya and children of Col. Muammar Gaddafi in response to government violence against civilians.
Blocking Property of Certain Persons Contributing to the Conflict in Somalia (April 12, 2010), authorizing sanctions in response to violence and piracy in Somalia.
Continuing Certain Restrictions with Respect to North Korea and North Korean Nationals (June 26, 2008), which was issued to extend restrictions that would have expired with the Trading with the Enemy Act, in response to North Korean nuclear assets and the potential for proliferation.
Blocking Property of Persons Undermining the Sovereignty of Lebanon or Its Democratic Processes and Institutions (Aug. 1, 2007), which targets individuals undermining Lebanese sovereignty and stability, and related attempts to assert Syrian control over the region through violence and intimidation.
Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo (Oct. 27, 2006), authorizing sanctions in response to human rights atrocities and violence in the Democratic Republic of the Congo.
Blocking Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus (June 16, 2006), which targets political elites in Belarus and others in response to political repressions, corruption, human rights abuses and fundamentally undemocratic elections.
Blocking Property of Certain Persons and Prohibiting the Export of Certain Goods to Syria (May 11, 2004), authorizing sanctions in response to Syrian state support of terrorism, pursuit of weapons of mass destruction and other arms, occupation of Lebanon and undermining stability of Iraq.
Protecting the Development Fund for Iraq and Certain Other Property in Which Iraq has an Interest (May 22, 2003), which safeguards Iraqi petroleum and other funds from being used to obstruct rebuilding in Iraq. The emergency was extended in August 2003 to authorize sanction against the former regime in Iraq, certain officials and their family members.
Blocking Property of Persons Undermining Democratic Processes or Institutions in Zimbabwe (March 6, 2003), which targets elites in Zimbabwe in response to efforts to undermine democracy and incite violence and politically motivated instability in the southern African region.
Blocking Property and Prohibiting Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism (Sept. 23, 2001), which targets anyone with ties to terrorist operations, issued in direct response to the Sept. 11, 2001 attacks.
Declaration of National Emergency by Reason of Certain Terrorist Attacks (Sept. 14, 2001), issued in response to the 9/11 attacks, this executive order gave Bush sweeping powers to mobilize armed forces.
Continuation of Export Control Regulations (Aug. 17, 2001), which extends the Export Administration Act of 1979, asserting that foreign parties should not have unrestricted access to US goods and technologies.
Blocking Property of Persons Who Threaten International Stabilization Efforts in the Western Balkans (June 26, 2001), which targets individuals engaging in or supporting extremist violence or obstructing the Dayton Accords in the former Yugoslavia region.
Blocking Sudanese Government Property and Prohibiting Transactions with Sudan (Nov. 3, 1997), authorizing sanctions against the government of Sudan for their support of international terrorism, destabilization of the region and human rights violations, including slavery.
Regulations of the Anchorage and Movement of Vessels with Respect to Cuba (March 1, 1996), which was issued after Cuba shot down to US civilian planes. This was modified by Obama after relations thawed between the US and Cuba, but under re-upped under Trump, specifically citing immigration concerns that the “outflow of Cuban nationals may have a destabilizing effect on the United States.”
Blocking Assets and Prohibiting Transactions with Significant Narcotics Traffickers (Oct. 21, 1995), which targets foreign drug traffickers in response to “violence corruption and harm” caused in the US and abroad.
Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum Resources (March 15, 1995), which limited US business agreements regarding Iranian oil.
Prohibiting Transactions with Terrorists Who Threaten to Disrupt the Middle East Peace Process (Jan. 23, 1995), which forbids transactions with organizations such as Hamas, Hezbollah and others.
Proliferation of Weapons of Mass Destruction (Nov. 14, 1994), which provides for the control the exports of WMDs and their delivery mechanisms.
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