I’ve edited this post to reflect that I got it wrong and we’re screwed: a joint resolution requires the President’s signature, or for Congress to override his veto, which is unlikely. This is the result of a 1983 Supreme Court decision. My updates are indicated with italics and strikethroughs.
President Trump keeps hinting that, perhaps within the next few days, he may declare a “state of emergency” at the border and order U.S. military personnel to build a wall. This would allow him to build a wall despite the deadlocked debate currently shutting down the U.S. government. He could call it an “emergency” and go against the intent of Congress, spending money—apparently from Defense Department military construction or operations and maintenance funds—that was not appropriated for wall-building.
Such a move would break longstanding norms about the use of presidential power without checks and balances in our democracy. It would also violate longstanding norms about the use of the U.S. military on U.S. soil. And according to Yale law professor Bruce Ackerman, an emergency declaration would not only “be illegal, but if members of the armed forces obeyed his command, they would be committing a federal crime.”
But what would happen if Trump did it anyway? The National Emergencies Act of 1976 (Chapter 34 of Title 50 of the U.S. Code) is pretty clear about what comes next.
- Congress can vote to strike down a national emergency declaration by passing a joint resolution (a bill that
doesn’t requirerequires the president’s signature). In fact, whether Congress wants to do so or not, the law requires it to meet, within six months of an emergency declaration, to consider whether to vote on a joint resolution.
- The House of Representatives, with its big new Democratic Party majority, would be virtually certain to approve a joint resolution to shut down Trump’s emergency declaration. After such a resolution gets introduced, the House technically has 15 days to get it out of committee and 3 more days to debate and vote on the floor. But Speaker Pelosi’s House would probably approve a joint resolution rejecting a state of emergency before the ink even dried on the president’s proclamation.
- The joint resolution would then go to the Senate. The National Emergencies Act would then give the Senate fifteen days to get it through committee, and three days for the full chamber to debate and vote on it. (The Senate could also hold a vote not to consider the resolution—but that amounts to a vote on the resolution.)
- It’s not clear what would happen in the Senate. Though president Trump’s Republican Party holds a 53-to-47 seat majority, the Senate is not guaranteed to uphold a “national emergency” declaration for military wall-building. The handful of moderate Republicans, some of them Trump critics, would be uncomfortable with the process and unenthusiastic about spending billions on a border wall. Even some conservative Republicans would be uncomfortable with using the National Emergencies Act to circumvent Congress’s power to appropriate money. Some would also be troubled about using the military for such a long-term domestic mission.
- We would probably see days of tense, high-stakes political theater, but there is some likelihood (30 to 70 percent?) that the Senate would also approve a joint resolution striking down Trump’s emergency declaration. Unfortunately, Trump would then be able to veto the resolution. Overriding that veto would require the votes of two-thirds of both houses of Congress, which is unlikely. The national emergency would stand.
But wWhat if the Senate disagrees with the House? The National Emergencies Act foresees this. “In the case of any disagreement between the two Houses of Congress,” the law explains, both houses must name representatives to a conference committee, which would then have six days to file a report that the House and Senate would have to vote on within another six days. In other words, the two houses are required to compromise, then vote on the compromise agreement.
- This is where things get vague. What if the two houses are still deadlocked? “In the event the conferees are unable to agree within forty-eight hours, they shall report back to their respective Houses in disagreement,” the law reads.
What happens then? I don’t know—you’d better ask a constitutional lawyer. Because if the situation reaches that point, the United States would find itself in one of the worst constitutional crises in its history.