Prohibiting the Use of a National Emergency to Get Funds for a Border Wall (H.R. 522)

What is H.R. 522?

(Updated April 7, 2021)

This bill — the No Walls Act — would prohibit the use of available funds to build any new border barriers through the declaration of a national emergency. It’d also prohibit using existing funds to declare a national emergency with respect to immigration concerns at the U.S.-Mexico border. This restriction would remain in force in the event that any federal agency’s appropriations lapse.

Argument in favor

President Trump’s threat of a national emergency declaration to get money to build his promised southern border wall would be an example of unconstitutional executive overreach if he were to follow through. This bill would make it impossible for Trump to use a national emergency to get his border wall, taking away the reasons for him to declare a national emergency.

Argument opposed

Presidents have the right to declare a national emergency and marshal resources to protect America’s national security. This includes declaring a national emergency to build a border wall. Passage of this bill would eliminate an important tool in the presidential toolkit and may not be constitutional.

Impact

U.S.-Mexico border; southern border wall; federal budget; and President Trump.

Cost of H.R. 522

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Grace Meng (D-NY) introduced this bill during the government shutdown to stop President Trump from declaring a national emergency to stop President Trump from declaring a national emergency for his border wall. When she introduced this bill, Rep. Meng said in a press release:

“It is unconscionable that President Trump is threatening to side-step Congress and declare a fake national emergency in order to build his wall, as funding for the government and more than 800,000 federal workers hangs in the balance. We must send a clear message to the President that creating this type of manufactured emergency for the sole purpose of securing an unrealistic campaign promise is unacceptable. There can be legitimate national emergencies. Federal agencies can construct authorized border barriers. But the President can’t just refuse to fund the government, say ‘EMERGENCY!!!’ and get whatever political wish he desires. That’s not how the Constitution works. The passage of my legislation would ensure that this outrageous abuse of power does not happen, and I urge all of my colleagues to support it.”

In an op-ed in the New York Times, Yale Law School professor Bruce Ackerman wrote that there's no way Trump could use emergency powers to build the wall — at least not as long as he opts to use funds from the military budget and use military personnel to build it:

“President Trump on Friday said that he was considering the declaration of a “national emergency” along the border with Mexico, which he apparently believes would allow him to divert funds from the military budget to pay for a wall, and to use military personnel to build it.  While it is hard to know exactly what the president has in mind, or whether he has any conception about what it would entail, one thing is clear: Not only would such an action be illegal, but if members of the armed forces obeyed his command, they would be committing a federal crime.”

In an article in the National Review, Berkeley Law professor John Yoo argued that the law is on Trump’s side if he were to declare a national emergency to build his wall:

“Congress has not passed a law denying the President the authority to take measures to protect the border; in fact, in 2006 Congress passed a law by bipartisan majorities authorizing the construction of a wall. In Dames & Moore v. Regan (1981), the Court found that when Congress broadly delegates a general power to the executive branch in the area of foreign affairs, such as the power to impose economic sanctions, it would not read Congress’s neglect to grant a more specific, related authority as foreclosing the president from exercising that authority. Instead, it would treat Congress’s silence as acquiescence to presidential initiative, especially in times of emergency. That is exactly the case here: Congress has authorized a wall and other security measures at the border, it has not passed any law forbidding such a wall, and the president has invoked delegated powers to continue the wall’s construction… Not only do presidents still have some reservoir of constitutional authority to declare emergencies, but Congress has seen fit to enhance it with the right to re-allocate spending to support such a declaration. Despite the pleas of administration critics, the Supreme Court will almost certainly agree.”

This bill has seven cosponsors, all of whom are Democrats.

Of Note: President Trump has threatened to declare a national emergency to build his promised southern border wall if congressional Democrats continue to deny the $5.7 billion he’s demanded for his border wall. White House press secretary Sarah Huckabee Sanders suggested that Trump would declare the emergency if Democrats don’t make a deal:

"What I do know is: If they don't come back with a deal, that means Democrats get virtually nothing that will force him to have to take executive action. There is a process in which the president wants to exhaust all options, primarily doing what we feel is the best one, which is a legislative fix. But if Congress doesn't do their job, then the president will be forced to make up for all of their shortcomings."

Sen. Mitch McConnell has reportedly pushed back against Trump’s threats of a national emergency declaration. The New York Times reports:

“[I]n a one-on-one meeting with the president, Senator Mitch McConnell of Kentucky, the majority leader, reportedly warned Mr. Trump that declaring a national emergency to build his wall would almost certainly spark a rebellion within his party — and a vote to overrule him.”

Media:

• Sponsoring Rep. Grace Meng (D-NY) Press Release

• New York Times Op-Ed

• National Review

• Roll Call

• New York Times (Context)