As it is well known through the media across the country, the US President Donald Trump declared Friday a National Emergency in response to the crisis that he says exists on the southern border between the US and Mexico. President Trump believes this crisis is due to the arrival of undocumented immigrants coming mostly from Central America, as well as drug dealers, human traffickers, criminals, etc. This declaration will allow him to have the necessary funds for the construction of the Border Wall and avoid these misfortunes.
But the question is:
Can the President of the United States declare such a National Emergency? Can the President use these powers to build a wall? Are there justifiable arguments or real facts at this moment in the country that requires this emergency measure?
Let's start by defining what is a “National Emergency”: it is a declaration or legal mechanism that temporarily grants the President of the United States a special power to deal with a crisis in a hurry without the authorization of Congress.
The National Emergency Law establishes few references or criteria regarding the handling of the crisis. The law allows issuing the declaration when the country is threatened by a crisis, necessity or circumstance of emergency that is not a natural war or disaster; therefore, an emergency can be declared at the discretion of the President.
If the President can use his authority to build a wall, his government can point to two (2) laws, one that would have to be authorized by the Secretary of the Army to stop the civil works of the military body and instead direct the troops and other resources to the President's request – precisely to the lifting of the wall; and the second, that allows the Secretary of Defense to begin military construction projects using funds that Congress had already allocated but had not yet been allocated to something specific, such as what happened with the Secure Fence Act 2006, Law which allows the Department of National Security to improve physical infrastructure.
Finally, we must highlight whether there is or not the existence of a real event in the country that justifies this emergency measure. In this regard, we can say that from now, groups of activists and pro-immigrant organizations are preparing to press charges against the declaration issued by the Chief Executive of the United States, considering that it was an illegal decision, since they consider that there is no crisis or emergency in the southern border of the USA that justifies the recently issued Emergency Declaration. Such determination would be made by the Supreme Court, who would make the decision after evaluating the arguments that both parties present.