In one of his first acts as president, Donald Trump issued a proclamation declaring a national emergency at the southern border. The proclamation authorizes the Secretary of Defense to move money within the department to fund construction of the border wall. It further authorizes the Secretary to call up reservists to assist the Department of Homeland Security in its border activities.
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Six years ago, with illegal border crossings hovering near a 40-year low, Trump also declared an emergency to secure funding for the border wall and to call up reservists. So it should come as no surprise that he did the same in his second term, with illegal border crossings at higher levels (although still steadily decreasing from the record highs seen in late 2023 and early 2024).
But the increased traffic at the border does not justify what is still a misuse of emergency powers. By using these authorities to address a longstanding policy problem, Trump is usurping the role that the Constitution assigns to Congress. Moreover, the actions he has laid out likely exceed the authority provided by the specific powers he has invoked.
The 1976 National Emergencies Act gives the president broad discretion to declare a national emergency. That declaration serves as a trigger to unlock powers contained in 150 different provisions of law, including some that carry alarming potential for abuse. For instance, there are provisions allowing the president to take over or shut down communications facilities and to freeze Americans’ assets without judicial process. It is not hard to see how a president could wield these powers to erode both individual liberties and democracy itself.
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In the proclamation he issued Monday, Trump invoked a provision that allows the Secretary of Defense to reallocate department funds to pay for “military construction” projects that Congress has not authorized. He used this provision in 2019 to secure funding for the border wall after a split Congress refused to allocate the amounts he requested. Reprogramming these funds meant terminating ongoing projects to build weapons maintenance shops, fire rescue stations, and cyberoperations facilities. He has now invoked the same provision for the same purpose, without waiting to see if the new Republican-controlled Congress would provide funding.
Trump also invoked a power that allows the Secretary of Defense to call up reservists, including National Guard forces, in a national emergency. These troops will supplement National Guard forces currently deployed at the border to support the Department of Homeland Security. The military has been deployed in this role for years, and President Biden relied on the same emergency authority to augment their numbers. (Because the troops are providing logistical support rather than apprehending or detaining migrants, they are not violating the Posse Comitatus Act’s general prohibition on military participation in law enforcement.)
Leaving aside the merits of these policies, accomplishing them through emergency powers is an abuse of presidential authority. Emergency powers play a particular role in our constitutional system. They give the president extraordinary flexibility to address sudden, unexpected crises—the very definition of “emergency”—that Congress could not have foreseen and cannot act quickly or flexibly enough to address after-the-fact. If a problem is longstanding and Congress has had time to grapple with it, it is not a valid target of emergency powers, however serious it may be.
There is nothing sudden or unexpected about unlawful immigration at the southern border. Moreover, Congress can and should address the problem by passing comprehensive immigration reform and allocating sufficient resources to handle the backlog of people seeking to immigrate through lawful means. So far, though, Trump hasn’t shown much interest in a long-term solution. Indeed, when Congress was on the verge of passing a bipartisan border security bill in 2024, he reportedly pressured Republican lawmakers to kill it so he could continue to campaign on border chaos.
Unfortunately, even though Congress clearly intended for national emergencies to be declared sparingly, there is no definition of “national emergency” in the law. Absent such a definition, courts historically have been quite deferential to a president’s determination that an emergency exists. But they have been much more willing to examine whether a president’s actions comport with the specific emergency powers the president has invoked. And on this count, Trump will likely run into trouble.
In particular, some courts struck down Trump’s previous use of the “military construction” provision to build the border wall. Under the provision, the purpose of the construction project must be to support a deployment of the armed forces. For instance, a temporary base may be built to support troops deployed to a remote overseas location. The border wall turns this condition on its head: Instead of the construction supporting a military deployment, the military is being deployed to support the construction. The courts’ decisions were stayed on appeal, and the Supreme Court vacated them in 2021 after Biden terminated Trump’s emergency declaration. But the same arguments will be raised now—and if courts faithfully interpret and apply the law, they should prevail.
Trump’s invocation of the power to call up reservists could fail for a different reason. Under a separate law, the armed forces may not provide support to law enforcement agencies (such as the Department of Homeland Security) “if the provision of such support will adversely affect the military preparedness of the United States.” U.S. military personnel are already stationed in over 160 countries throughout the world, and the National Guard is stretched thin. Moreover, lengthy border deployments have proven bad for morale at a time when the military is experiencing unprecedented recruitment and retention challenges. Under these circumstances, any substantial call-up of reservists would likely be detrimental to military preparedness.
Without question, there are serious problems at the southern border. The numbers of people attempting to flee persecution, drug or gang-related violence, and economic hardship are creating a humanitarian crisis. Moreover, the level of unlawful migration in recent years speaks to a broken immigration system that must be fixed.
But misusing emergency powers will not solve the problem; instead, it will open the door to further such abuses—by this president or a future one. And the next time, those abuses could involve even more potent emergency powers, with even greater potential to undermine liberties and democracy. Until Congress reforms the National Emergencies Act to help prevent presidential overreach, it will be up to the courts to keep us off that slippery slope.