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McKenna: Trump has advantage if he declares emergency over wall


After visiting the country’s southern border Thursday, some have theorized that President Trump is inching closer to declaring a national state of emergency, as a workaround to build his proposed wall. But will that stand up in court? Former Washington State Attorney General Rob McKenna weighed in.

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“A president is required to cite particular provisions of law that authorize him to take the steps he wants to take under a national emergency,” McKenna told KIRO Radio’s Dave Ross on Seattle’s Morning News.

The original law allowing a president to declare a state of national emergency was first adopted in 1976. Technically, there are 31 total “emergencies” ongoing, including one issued shortly after 9/11 in 2001.

In total, there have been 58 states of emergency declared since 1979. What could be different about one for Trump’s wall, though, is that a state of emergency has never been met with a Congressional challenge.

“Congress has the power to end an emergency,” said McKenna. “Those checks and balances have not actually been used by Congress since the law was adopted in 1976.”

The process Congress can employ is… well, complicated to say the very least, and was made that way by a 1983 Supreme Court ruling.

As McKenna explains it: Congress can revoke a state of emergency, but thanks to that 1983 ruling, any revocation then needs to be signed by the president in order to go into effect. If the president denies Congress, it then takes a two-thirds vote from both the House and Senate to overturn the president’s veto. Only after all that could a state of emergency be stopped by Congress.

The other option is a court challenge, but if things come to that, McKenna noted that the president has a significant leg up.

“The president has the first mover advantage,” said McKenna. “He goes out, he declares the emergency, money gets moved, [and] construction gets underway — that’s a pretty big advantage unless a federal court steps in.”

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By the time a federal court does step in, the president could potentially get a lot done, with executive authority granting him significant power in any such situation.

“That’s what (the president is) allowed to do, is to state his reasoning and his judgment, [and] essentially dare Congress and the courts to stop him,” said McKenna.

As for where Trump plans on getting the money for his wall specifically, a recent report from the Associated Press says that the White House has instructed the Army Corps of Engineers to pull from the billions of dollars earmarked for Puerto Rico’s disaster response in 2018.

For now, said McKenna, the president could very well be making preparations to circumvent any legal challenge that might come his way.

“I don’t know if it’s a political calculation, or he’s waiting to get all the legal ducks lined up, making sure he can find pots of money that are sufficient to build as much as he wants to build,” he said.

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