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How It Would Work If Trump Declared A National Emergency To Get Funds For Border Wall

ARI SHAPIRO, HOST:

This is what Day 20 of the partial government shutdown sounds like.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PROTESTERS: (Chanting) End the shutdown.

SHAPIRO: Hundreds of federal workers are protesting here in Washington. Around the country, many more will miss their first paychecks tomorrow. At the heart of the conflict remains President Trump's insistence that Congress appropriate billions of dollars to build a wall on the U.S.-Mexico border, a promise Trump made repeatedly during his campaign but failed to fulfill when his party controlled all of Congress. Now that Democrats hold the House, they are refusing to supply the funds.

AUDIE CORNISH, HOST:

So the president has floated the idea of skirting Congress by declaring a national emergency to build the wall. Today, before leaving on a trip to the border, Trump doubled down on that threat.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT DONALD TRUMP: I have the absolute right to declare a national emergency the lawyers have so advised me. I'm not prepared to do that yet, but if I have to, I will. I have no doubt about it. I will.

CORNISH: For more on the president's legal authority to make such a declaration, we're joined by Steve Vladeck. He's a law professor at the University of Texas. He specializes in national security and military law. Welcome to the program.

STEVE VLADECK: Thanks, Audie. Great to be with you.

CORNISH: To start, how would declaring a national emergency give the president access to funds to build the wall, especially if Congress wouldn't otherwise approve those funds?

VLADECK: So I think the important thing to understand here is that Congress has approved in advance access to a specific limited set of authorities in times of emergency. And the trigger for those authorities - the key, if you will - to unlock access to them is a declaration of a national emergency by the president. Basically, the idea is Congress can't anticipate in advance all of the national emergencies that might arise. But it can say, if the president finds a national emergency, here are the special authorities we'll give him that he wouldn't otherwise have. Using military construction funds for projects other than those that were appropriated is one of those authorities.

CORNISH: What are declarations of national emergency typically used for?

VLADECK: So I think the three categories where we tend to see them are when you have some kind of natural disaster - President Bush issued such a declaration after Hurricane Katrina - where you have some kind of manmade catastrophe, a terrorist attack. President Bill Clinton issued one after Oklahoma City, President Bush after 9/11. And then the third kind and perhaps the more - the most obscure category is national emergencies with regard to asset blocking. These are authorities that the federal government uses to try to interdict the flow of money to drug cartels, to terrorist groups overseas. So those are the three different kinds that we have on the books today.

CORNISH: Looking at what's going on in this moment, where would this fall among that list?

VLADECK: So I think there's actually no question that if the president does declare a national emergency, it would be unprecedented in the sense that we've never had one quite like it. Presumably the president would try to analogize it to a terrorist attack, that this is defending the country from, you know, threats from abroad. But we've never really seen it in this mode where it's proactive as opposed to reaction. And I think that's why one of the things Congress ought to consider once we're on the far side of this is whether we really want to give the president such open-ended authority or whether to define the categories, to set out at least some parameters for when a president can declare a nation emergency.

CORNISH: If the president does declare a national emergency and directs funds to be used to build a wall, could that be challenged in court in any way?

VLADECK: So I think we would see court challenges. The key is that the challenge would not be to the emergency declaration on its face. The fight would be over the specific authorities. For example, using military construction funds - the statute that allows that is supposed to be limited to construction projects for the use of the armed forces - not hard to imagine if the wall is built outside of military bases that someone who either lost out on a government contract because of this or a private landowner whose property value is affected might very well march into court and argue that the president is exceeding the terms of that statute.

CORNISH: What are you going to be listening for in the next few weeks?

VLADECK: The big question on the national emergency front is not whether the president is going to declare one but, if he does, which specific authorities he says he is now calling up? Is it just going to be the statutes folks have been talking about with regard to military and civil construction, or are there other authorities he's going to try to adapt for these purposes?

But I think the larger point, to step back for a second, is all of this is an end run around the fact that he can't get Congress to appropriate funds for the wall directly. The irony is, at the end of the day, Audie, if he can do it through this backdoor, there was never any need for the shutdown in the first place.

CORNISH: That's Steve Vladeck. He's a law professor at the University of Texas. Thank you for speaking with us.

VLADECK: Thank you. Transcript provided by NPR, Copyright NPR.