The best-known — and by far the most controversial — former federal emergency chief said Wednesday that President Donald Trump is “on solid legal ground” if he declares a national emergency to secure funding for his much-desired border wall.
“But he is going to have some troubles along the way, and one of them will be whether libertarian conservatives are going to accept a stronger federal government, as well as an enhanced bureaucracy,” Michael Brown, onetime Federal Emergency Management Administration chief, told questsin.
Now a successful radio talk show host in suburban Denver, Brown is best remembered for his oversight of disaster relief during Hurricane Katrina in 2005.
Brown said Trump can take the action he has discussed under the National Emergencies Act (H.R. 3884), enacted by Congress and signed into law by President Gerald Ford on September 14, 1976. Presidents have invoked the act to declare national emergencies 42 times, most of them to deal with natural disasters.
“In the extreme, the president would have the ability to waive the Posse Comitatus Act [which severely limits the use of the U.S. military to enforce domestic policy] and the Insurrection Act, [which governs the president’s use of the military to put down lawlessness in the U.S.],” he said.
Brown recalled how during Hurricane Katrina in 2005, that he, Attorney General Alberto Gonzales, and National Security Advisor Stephen Hadley had “drawn up the paperwork for President [George W.] Bush to declare a national emergency.” The possible waiver of the Posse Comitatus and Insurrection Acts was discussed, he told us.
Brown pointed out, “when we presented the proposed declaration of National Emergency to President Bush, he called [Louisiana’s Democratic Gov.] Kathleen Blanco and asked her ‘Do you want time to think about this [the declaration]?’ She made her discomfort clear —most likely because she didn’t want federal officials overriding state and local officials —and there was no declaration of national emergency over Katrina.”
Were Trump to offer the same courtesy to the governors of the four states where a barrier or wall was being constructed — Arizona, California, New Mexico, and Texas — Brown believes “he might get some objections. Republican Govs. [Greg] Abbott of Texas and [Doug] Ducey of Arizona might easily go along with his declaration, but Democratic Govs. [Gavin] Newsom of California and [Michelle Lujan] Grisham of New Mexico may surely object. This could definitely start court action and create some problems for the president.”
Brown believes Trump likely may proceed to move funding appropriated for a certain military project to the proposed construction of the wall. This would most likely be done under 10 U.S. Code @2808, which states that, under the invocation of the National Emergencies Act, “the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects and may authorize the secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.”
The administration would almost surely justify the definition of the wall as a “military construction project” with Trump’s claim of a threat to the U.S. from likely terrorists crossing the border with an intent to wage violent acts. Democrats would almost certainly challenge this claim in court, Brown predicted.
Any declaration of national emergency, he noted, comes under congressional oversight. Under the legislation, every six months “each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.” However, it would take two-thirds of both houses of Congress to override a sure presidential veto of a joint resolution saying the emergency had ended.
Is such a declaration of national emergency by Trump worth it to build the wall?
“I don’t think so,” Brown told us, “He got mad and walked out of a meeting [with Democratic congressional leaders]. I don’t mind this and, perhaps I’m naïve, but I think they’ll come back to the negotiating table. In any event, I prefer this to allowing an enhanced federal bureaucracy."
John Gizzi is chief political columnist and White House correspondent for questsin. For more of his reports, Go Here Now.