From Voice of America

U.S. President Donald Trump is considering formally declaring the southern U.S. border a “national emergency,” likely clearing the way for him to authorize new funding for a permanent physical barrier.

The move could end a standoff with Congress over funding for the wall, but some legal analysts worry it will set a dangerous precedent for presidents trying to negotiate with Congress.

VOA spoke with John Hudak, Deputy Director of the Center for Effective Public Management at The Brooking Institute, about the legal issues around the president’s possible emergency declaration.

QUESTION: What powers does a president have to declare a national emergency? Could he simply order government funds to be used to build a border wall?

So there are really two questions here. First, under the National Emergencies Act, the president has a fairly broad power to declare a national emergency. Now the declaration of that emergency is simply that — a declaration. And according to a pretty firm reading of that law, it’s hard to see where there is an exception to the president’s ability to do it.

The next part of that, though, involves the powers that the president can exercise under that law and there are obvious limitations on that, constitutional limitations and other limitations within the law that the president can’t violate. And unfortunately, or perhaps fortunately, we haven’t experienced serious questions about presidential power in this space. So it’s really left as an open question right now, in terms of the extent of presidential power that courts will need to sort out.

Q: Could Democrats block this in Congress? Is there any constitutional precedent for presidents simply going around Congress to fund a priority policy item?

So there is, within the law, the ability of Congress to stop a national emergency. It requires both houses of Congress to vote to say that the national emergency is over. Now Democrats can certainly do that alone, in the House. They cannot, however, do it alone in the Senate, it would require several Republican votes.

However, this is the type of exercise of executive power that leaves a lot of Republicans uneasy. And you’re already starting to see those conversations among Senate Republicans, saying that if we’re all right with President Trump doing this over a border wall, would we also be all right with a Democratic president doing this over climate change or other issues?

And so I think it remains to be seen whether Congress will have the votes to stop presidential action in this area, whether they’ll have the political will to do it. But they certainly have the power to stop this type of behavior.

To the second part of your question, you know, presidents have tried to go around Congress in terms of spending money in the past or even moving money around within or across budget lines or accounts in the past.

And frequently presidents are stopped because the spending power in the constitution rests with the Congress and so this creates a real challenge for President Trump if he wants to start moving funds or re-appropriating funds or using funds that are not even appropriated, pushing up against that constitutional protection against that power. So he might have the power to declare a national emergency, but he cannot usurp the Constitution in the exercise of powers during that emergency.

Q: On the politics of the current shutdown, is one side or the other winning? Which sides appears to have an advantage at the moment? How does it end?

Well, it’s clear one side is losing and that’s the American public, and particularly the hundreds of thousands of federal workers who are not being paid or who are not going to work. In terms of the political actors, you know, the polling that we have suggests that most Americans blame President Trump for the shutdown.

A smaller percentage of Americans blame congressional Democrats and smaller still blame congressional Republicans. I think a lot of Americans look at this skeptically and say, ‘What has changed between the beginning of the president’s term and now that makes this such a dire emergency?’ And I think it leaves a lot of Americans scratching their head. President Trump is playing to his base here, but unfortunately his base is a small percentage of the population. And most of the rest of the population is not with him on this issue of the wall.

Elizabeth Cherneff contributed to this report.