Wall Emergency: Is It Constitutional?

In 2019, former US President Donald Trump declared a national emergency at the southern border to bypass Congress and access billions of dollars in funding for a border wall. This was done to override congressional refusal to fund a border wall. Trump's declaration was challenged in court by the American Civil Liberties Union and the state of California, with critics arguing that the bulk of illegal drugs comes through legal ports of entry, and that illegal immigrants commit less crime than native-born Americans. The National Emergencies Act (NEA), passed in 1976, constrains executive overreach by allowing Congress to terminate a national emergency with a majority vote. However, the Supreme Court declared such legislative vetoes unconstitutional in 1983, making emergencies “easy to declare and hard to stop”. The declaration of a national emergency unlocks over 130 special authorities for the president, such as the authority to shut down communications facilities or draw down equipment from national defense stockpiles.

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Trump's declaration bypassed Congress

In 2019, President Trump declared a national emergency to bypass Congress and access billions of dollars in funding for a border wall. This move allowed him to circumvent the need for congressional approval and access funds without their support. The declaration was based on the premise that America's sovereignty was under attack, citing issues such as criminal gangs, human traffickers, and illicit narcotics at the southern border.

Trump's use of emergency powers to access funding for the wall was controversial. The Constitution ordinarily prohibits the president from repurposing money appropriated by Congress for other purposes, and a bipartisan majority of the House and Senate opposed funding for the wall. Legal scholars and critics argued that Trump was exploiting loopholes and redefining "emergency" to impose his agenda and bypass the usual checks and balances of governance.

The National Emergencies Act, passed by Congress in 1976, was intended to regulate presidential emergency declarations. However, Trump's declaration highlighted the limitations of this legislation in preventing presidential overreach. The act allows the president to declare a national emergency at any time, for almost any reason, without needing to prove a specific threat. This flexibility, originally intended for rare moments of crisis, became a tool for Trump to advance his agenda and make an end-run around Congress.

Trump's declaration also set a precedent for the use of emergency powers, with concerns raised about the potential for a permanent emergency state. The president's ability to declare emergencies and access a range of statutory powers has raised fears about the erosion of democratic norms and the concentration of power in the executive branch. This shift in power dynamics has the potential to undermine the constitutional balance of power and weaken the role of Congress in checking presidential authority.

While Trump's declaration bypassed the immediate need for congressional approval, it also sparked legal challenges and legislative efforts to block his plan. The American Civil Liberties Union (ACLU) and the state of California were among those who challenged the declaration in court, arguing that it was an abuse of power and a violation of the Constitution. These challenges, along with proposed reforms to the National Emergencies Act, highlight the ongoing struggle to define and regulate the use of emergency powers by the president.

The emergency declaration gives the president access to over 130 special authorities

The US Constitution grants the president the authority to declare a national emergency. This power has been invoked by presidents for various reasons, including critical situations such as the Civil War, the Great Depression, and the September 11 terrorist attacks.

In recent years, the use of national emergency declarations has sparked controversy, particularly when President Trump declared a national emergency at the US-Mexico border in 2019. This declaration was made to access funding for a border wall, bypassing congressional opposition. The declaration was challenged in court, with critics arguing that it violated the Constitution's appropriation powers and that the situation did not constitute a national security emergency.

The National Emergencies Act (NEA) was passed in 1976 to regulate emergency declarations and prevent executive overreach. The act allows Congress to terminate a national emergency with a joint resolution, requiring presidential signature or a two-thirds majority in both houses for a contested termination. However, the Supreme Court struck down the "legislative veto" in 1983, making it easier to declare emergencies and challenging to stop them.

The potential for abuse of emergency powers has raised concerns about civil rights violations and the erosion of democratic institutions. The ARTICLE ONE Act has been introduced in Congress to address these concerns and reassert legislative authority over emergency declarations.

The southern border is overrun by cartels, criminal gangs, and terrorists

The southern border of the United States is a site of ongoing national concern. In 2025, President Donald Trump declared a national emergency at the southern border, citing an invasion of the United States and stating that the border is "overrun by cartels, criminal gangs, known terrorists, human traffickers, smugglers, unvetted military-age males from foreign adversaries, and illicit narcotics".

Trump's declaration of a national emergency at the southern border has been controversial. Critics argue that the bulk of illegal drugs enters the US through legal ports of entry, and that illegal immigrants commit less crime than native-born Americans. They also argue that Trump's declaration is an attempt to bypass Congress and access funding for a border wall, which Congress had explicitly opposed.

The southern border has long been a site of criminal activity, with gangs and cartels smuggling drugs, firearms, and people across the border. These gangs pose a multi-jurisdictional threat, with various chapters and sets of specific gangs maintaining cross-jurisdictional connections and coordinating criminal activity. For example, street and prison gangs such as the Texas Mexican Mafia, Tri-City Bombers, and Hermanos de Pistoleros Latinos operate in South Texas and distribute illicit drugs throughout the region. Some of these gangs have also established chapters in Mexican border cities. Similarly, gangs such as Sureños 13, 18th Street, and Mexican Mafia (La Eme) operate in San Diego and Los Angeles, working closely with Mexican cartels to smuggle drugs and people into the US.

The situation at the southern border has been described as an invasion that has caused widespread chaos and suffering in the United States. It has been associated with the murders of innocent American citizens, including women and children, and foreign criminal gangs and cartels have begun seizing control of parts of cities, attacking vulnerable citizens, and terrorizing Americans beyond the control of local law enforcement. Cartels also control territories just south of the border, effectively deciding who can and cannot enter the United States from Mexico.

In response to the national emergency, Trump directed the Secretary of Defense to deploy personnel and resources, including units from the Armed Forces, the Ready Reserve, and the National Guard, to support the Department of Homeland Security in obtaining full operational control of the southern border.

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The ACLU raised alarms over Trump's use of the Insurrection Act of 1807

The American Civil Liberties Union (ACLU) raised concerns about former President Donald Trump's potential use of the Insurrection Act of 1807. The Insurrection Act of 1807 allows the President to deploy the National Guard or the military to enforce laws in specific circumstances, such as insurrection or obstruction of laws, without state consent.

Trump's consideration of the Insurrection Act was in the context of addressing protests and civil unrest in multiple U.S. cities, including Washington D.C., following the murder of George Floyd in 2020. The President threatened to use the military to protect life and property if local authorities could not restore order. This marked an escalation from the use of the National Guard, which had already been deployed in some instances.

The ACLU and other critics expressed alarm over Trump's potential invocation of the Insurrection Act, arguing that it was unnecessary and an overreach of executive power. They highlighted the importance of reserving such powers for genuine emergencies and the rare instances of war or armed rebellion. The ACLU also emphasized the danger of using the military for domestic purposes, particularly in service of a partisan political agenda.

The Insurrection Act has been invoked in the past, including by President Eisenhower in 1958 to enforce desegregation and protect the Little Rock Nine against violent segregationists. However, critics of Trump's potential use of the Act argued that the circumstances did not warrant such a response, and there were concerns about the potential for abuse of power.

While Trump did not ultimately invoke the Insurrection Act in 2020, he did issue an executive order declaring a national emergency at the southern border, directing the Departments of Defense and Homeland Security to recommend the use of the Insurrection Act by a specified deadline. This action by Trump further contributed to concerns about his potential use of the Act.

The emergency declaration is unconstitutional and an abuse of power

The declaration is an attempt by the president to bypass Congress and access billions of dollars in funding for the wall. This is an abuse of the powers granted by the National Emergencies Act, which was passed in 1976 to regulate emergency declarations. The Act has been exploited by both Democratic and Republican administrations to circumvent the normal legal constraints of the presidency.

The southern border does not constitute a national security emergency, only a humanitarian one. The bulk of illegal drugs comes through legal ports of entry, and illegal immigrants commit less crime than native-born Americans. The declaration is therefore not justified and is an attempt to redefine "emergency" to impose the president's will.

The president has a responsibility to uphold the Constitution and protect the country from imminent threats. However, the southern border situation does not qualify as such a threat, and the declaration of a national emergency is not a valid use of the president's powers. The declaration is an infringement on constitutional rights and an attempt to govern by unilateral decree.

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