According to Enrique Armijo, Associate Professor of Law and Associate Dean of Academic Affairs, Elon University, Trump’s speech had much speculation that the president would declare an emergency under the1976 National Emergencies Act to pay for $5.7 billion border wall which was behind the government shutdown, funds that House Democrats had refused to provide.
However, this did not happen as much as reports had it that the administration was still considering the option. The constitution issues associated with this kind of declaration are far from clear. To begin with, the facts underlying whether an emergency exists are disputed.
A National Emergencies Act Declaration for wall funding would immediately be countered in court. Congressional Democrats would contest that this is a usurpation of their legislative appropriation power. The State and private landowners would also argue on their land being taken by eminent domain for the wall project considering that the federal government owns less than a third of the area needed for the construction.
Regardless of the lack of legal clarity, and the inevitable setbacks that such a situation would bring; there is one more straightforward reason why the administration couldn’t declare an emergency. A goal that was likely apparent even to the president who had shown himself to be not so good a dealmaker as was advertised.
The reason is that; the formal declaration of an emergency would limit Trump’s capability of striking a compromise. Without this, Trump would be able to declare victory and sign a bill bringing back the government after finding a middle ground with Democrats and then trying to sell the compromise to his angry base.
However, once he declares the wall should be there or nothing, the issue would be resolved by the courts, which could tell Trump that he could have nothing at all.
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