President Trump declared a national emergency on the southern border on February 15 after losing a two month battle with lawmakers to appropriate sufficient funds for the proposed border wall. The declaration of a national emergency gives Trump access to billions of dollars that Congress refused to give him. Trump has asserted that the rise in illegal immigrants, coupled with the flow of drugs and criminals contains enough of a national security risk that a border wall is necessary and constitutes his right to declare a national emergency. Democrats have argued that the emergency has been constructed by the Trump administration. The issue has transformed into a dispute over the constitutionality of Trump’s declaration, and whether it breaches the separation of powers outlined in the Constitution, and is an overreach of executive power.  

On February 26 the House voted 245-182, including thirteen Republican votes, to overturn Trump’s declaration. On March 14, the Republican-controlled Senate voted 59-41 to reject Trump’s emergency declaration. Republicans Rob Portman (OH), Mitt Romney (UT), Roy Blunt (MO), Marco Rubio of (FL), Patrick Toomey (PA), Rand Paul (KY), Roger Wicker (MS), Lamar Alexander (TN) and Jerry Moran (KS) were all last minute flips, enough to reject the emergency declaration. Trump issued the first veto of his presidency on Sunday, rejecting Congress’s move to block the emergency declaration.

“I believe the use of emergency powers in this circumstance violates the Constitution,” said Senator Jerry Moran, a traditional conservative who typically doesn’t dissent from the party, was one of the key Republicans that switched their stance on the emergency declaration late.“This continues our country down the path of all powerful executive — something those who wrote the Constitution were fearful of.”

The debate over the constitutionality of the declaration has been argued back and forth ever since Trump brought up the option. Yale Law’s Kate Stith explained the constitutional issue at hand. “The Appropriations Clause would appear to categorically enjoin the President and federal agencies to spend funds only as appropriated by Congress. Even where the President believes that federal spending is urgently needed, spending in the absence of appropriations is constitutionally prohibited,” Stith wrote. In essence, it’s unconstitutional for a president to spend money without congressional approval.

In 1976, Congress passed the National Emergencies Act which better defined a president’s ability to declare a national emergency. The law gave Presidents leeway to take constitutional powers that’d otherwise be Congress’s in the purpose of a more efficient response to emergencies.

Aside from the debate on the constitutionality of the appropriations for the declaration, Trump faces a potential legal battle in acquiring the real estate needed to build the wall. The advocacy group Public Citizen has already filed a lawsuit on behalf of three landowners arguing that the President has exceeded his authority and that the declaration violates the separation of powers. Scott Bomboy, Editor in Chief of the Constitution Center, cites that the landmark Supreme Court decision in Youngstown Sheet & Tube Co. v. Sawyer (1952) will certainly be used in regard to any legal action against the national emergency. The decision marked that President Harry Truman could not seize privately owned steel mills during the Korean War. 16 states have also filed lawsuits against the emergency declaration.