The proclamation of a national emergency is to be in the Federal Register. Can money be moved without a national emergency?

By Robert Willmann

Even though the chatter in mass media and by various members of Congress is consumed with the declaration of a national emergency, we can pause and look to see if we can find it. Title 50, U.S. Code, sections 1621 and 31 tell us–

"Section 1621. Declaration of National Emergency by President; Publication in Federal Register; effect on other laws; superseding legislation

"(a) With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

…

"Section 1631. Declaration of national emergency by executive order; authority; publication in Federal Register; transmittal to Congress

"When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress."

President Trump put a "proclamation" on the White House Internet website on 15 February, but it did not appear in that day's Federal Register, or in the document prepared so far for 19 February, after the legal holiday on 18 February [1]–

https://www.whitehouse.gov/presidential-actions/presidential-proclamation-declaring-national-emergency-concerning-southern-border-united-states/

Calling the action a proclamation rather than an executive order is a little curious, since it would be cleaner to title it an executive order, as the section of the law says, but the title does not affect its validity, especially since it references the National Emergencies Act and contains the words, "hereby declare that a national emergency exists at the southern border of the United States …."

A declaration of a national emergency must have "the provisions of law under which he proposes that he, or other officers will act", and this one says that only two sections of federal law will be used — Title 10, U.S. Code, sections 12302 and 2808 [2]. This is interesting, since they are about the military "ready reserve" and "military construction projects". This approach may make the declaration and use of the Department of Defense easier to defend against lawsuits in court. Attacks against the proclamation are being led by the attorney generals of 16 states, even though only four states are on the border with Mexico, and the states' federal lawsuit is filed in the Northern District California, far away from the border [3]. The raging desire to breed and file court cases about this issue is in a race with cotton rats to see who can reproduce faster [4]–

"The prolific rodent can give birth to as many as nine litters a year, with two to 10 young per litter, according to The Mammals of Texas. Females breed as soon as 10 hours after having a litter, and the gestation period is approximately 27 days. Females begin breeding when they are only 40 days old, the online report states."

Here is a paper from the Congressional Research Service (CRS) discussing emergency powers of a president. Dated 30 August 2007, it is still applicable because Congress passed the National Emergencies Act in 1976 and it was apparently last amended in 2002 [5]. The paper has a list of declarations of an emergency from 1976 to 2007, on pages 13-16 (pdf pages 16-19), and a bibliography of articles, books, and documents on pages 20-22 (pdf pages 23-25). It is on this blog and an Internet citation is below [6]–

https://turcopolier.typepad.com/files/emergency_powers_98-505_2007aug30.pdf

A CRS paper from 19 April 2018, entitled "The President's Authority to Use the National Guard or the Armed Forces to Secure the Border", is here, and a citation is below [7]–

https://turcopolier.typepad.com/files/president_using_military_on_the_border.pdf

Section 1622 of the National Emergencies Act establishes ways that a declaration can be terminated, including through a "joint resolution" passed by Congress [8]. Joaquin Castro, a Democrat in the House from San Antonio, Texas, and chairman of the Congressional Hispanic Caucus, has vowed to try to do this [9].

The declaration of an emergency refers to money only through section 2808 of Title 10 of the U.S. Code, "Armed Forces"–

"(a) … Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.

"(b) When a decision is made to undertake military construction projects authorized by this section, the Secretary of Defense shall notify, in an electronic medium pursuant to section 480 of this title, the appropriate committees of Congress of the decision and of the estimated cost of the construction projects, including the cost of any real estate action pertaining to those construction projects".

It looks as if the White House is going to look to money already appropriated for the Department of Defense through the declaration of an emergency. This should mean that other money may be moved around from appropriations and parts of the federal budget and applied to building a barrier or wall and to providing other methods of border security. Mick Mulvaney, director of the Office of Management and Budget, and now also the "acting" White House Chief of Staff, talked about funding issues on 10 February 2019 on the Fox News Sunday television program, starting at 2 minutes, 22 seconds to 4 min., 34 sec. into the video [10]–

https://www.youtube.com/watch?v=l_Z0xx_zS0M

In tandem with border control is law that applies at that location. This CRS paper from 25 June 2018 is a short discussion of it, entitled "An Overview of U.S. Immigration Laws Regulating the Admission and Exclusion of Aliens at the Border" [11]–

https://turcopolier.typepad.com/files/immigration_law_at_the_border.pdf

The term "alien" means "any person not a citizen or national of the United States" [12] .

President Donald Trump has issued three executive orders in 2019 [13]. One of them, on 30 January 2019, declared a national emergency for the U.S. But this alleged emergency, requiring the imposition of sanctions and that you hide under your bed, is a fairly long way down south from the U.S. border with Mexico, and, according to the document, has been in existence since 2015! The location is … Venezuela–

https://www.federalregister.gov/documents/2019/01/30/2019-00615/taking-additional-steps-to-address-the-national-emergency-with-respect-to-venezuela

Using the references and citations that have been presented here as a starting point, you can think for yourself, in the face of media commentary that can range from slapdash to flagrant propaganda.

[1] The Federal Register of 15 and 19 February 2019–

https://www.federalregister.gov/documents/2019/02/15

https://www.govinfo.gov/content/pkg/FR-2019-02-15/pdf/FR-2019-02-15.pdf

https://www.federalregister.gov/documents/2019/02/19

https://www.govinfo.gov/content/pkg/FR-2019-02-19/pdf/FR-2019-02-19.pdf

[2] Laws cited in the declaration of emergency; 10 U.S.C. 12302 and 2808–

http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section12302&num=0&edition=prelim

https://www.law.cornell.edu/uscode/text/10/12302

http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section2808&num=0&edition=prelim

https://www.law.cornell.edu/uscode/text/10/2808

[3] https://www.politico.com/story/2019/02/18/california-leads-16-states-in-lawsuit-against-trump-national-emergency-declaration-1173768

[4] https://today.agrilife.org/2005/10/25/cyclical-population-explosion-of-cotton-rats-causes-concern/