Ret. Brigadier General Michael McDaniel explained how the National Emergencies Act empowers the president to redirect funding appropriated for executive operations. He offered his remarks in a Friday interview on SiriusXM’s Breitbart News Tonight with host Rebecca Mansour.
McDaniel said, “There really is no definition of an ’emergency.’ When Congress passed the National Emergencies Act in 1976, I think they intentionally did not include a definition of emergency. They created a process for the president and the Congress to sort of interact, to have this dance, when there is an emergency declaration.”
McDaniel continued, “I think they were intentionally giving a certain degree of discretion to the president, because who knows what’s going to happen in the future and what might be, [or] what sort of potential conflict or disaster might befall us?”
McDaniel added, “I think that the president can declare an emergency pretty much whenever he wants to, frankly, if we’re going to be candid about it. I don’t think that’s going to be reviewable by the courts, because we want the president to have that discretion.
McDaniel went on, “Now, I say that, but there are sort of two caveats I’d put on that. First is that the courts can review the next stage of that [emergency declaration]. The president can declare an emergency, but he’s got to get funding. There’s something like 46 different statutes or so that have funding sources that a president can use when there’s a national emergency, but in this case it’s going to boil down to just a few of those.”
McDaniel stated, “The second issue is that there is still going to be the opportunity — under the National Emergencies Act — for Congress to respond. I would note that Congress has never rescinded a national emergency when passed by the president. It takes a two-thirds vote of Congress. It takes a joint concurrent resolution. The reason I say it takes a two-thirds vote is because if it was less than that, the president could veto it.”
McDaniel noted, “There’s also the possibility that a court could question the funding source that is used if a lawsuit is brought by someone with standing. So while the president can declare an emergency, the question is, what do we do next? That’s the part that the president’s advisers need to think out to secondary and tertiary stages.”
Mansour asked what sources of funding President Donald Trump could draw on to fund the administration’s border security proposals.
“There are sort of two common [funding sources],” replied McDaniel. “They’ve talked about military construction. Within the Title 10 dealing with the U.S. Armed Forces, there is a section that was specifically passed for this purpose, for a declaration of emergency, which says that the president can redirect funds in the course of a national emergency.”
McDaniel added, “He can redirect military construction funds, however, those military construction funds can only be redirected to support the military’s response to a national emergency. Even though that’s been mentioned, I don’t think that would apply here.”
McDaniel went on, “There are also Army Corps of Engineers funds that could be reprogrammed, and these are like navigable water funds, working on jetties and the sort of projects on the Mississippi River and on the coastlines that we see. There’d be a question whether you could sort of fit those in there, but again, the test there is a little bit easier. It just has to be essential to national defense. That is going to be kind of a round peg in a square hole.”
McDaniel speculated that the Stafford Act is the most likely avenue through which the White House can draw funds for its border security plans.
“The Stafford Act is the act passed by Congress to provide funds to state and local governments in response to different emergencies,” stated McDaniel. “There are funds there that were appropriated by Congress to respond to hurricane Maria and other natural disasters that have not been spent, yet. So the question is whether you could reallocate those. If you talk about a natural disaster under the Stafford Act, it wouldn’t fall there, because the Stafford Act has a very specific definition of what a disaster is, and it could be man-made or it could be caused by nature, but this one wouldn’t fit.
McDaniel added, “But there’s a very broad definition of emergency under the Stafford Act, and basically it’s whatever the president believes is a catastrophe. In the FEMA interpretation, it’s something greater than a disaster. I think a common definition [of catastrophe] would be a sudden or overwhelming event that is an immediate danger to the health and safety of our citizens, so there’s going to be some dispute over whether that one applies, but that’s probably the best one that they’re going to use. Because it’s got a broad definition of emergency and because there’s money available that’s unspent, I think that the Stafford Act is probably quicker or easier to use.”
McDaniel remarked, “It’s not whether or not the president can declare an emergency. He can. Because there’s no clear definition, I think that the courts will interpret that and favor the implicit powers of the president either under the Executive Clause or the Commander-in-Chief Clause to do so, but the question is, what then? If he declares an emergency, does that mean then that he is willing to sign some form of continuing resolution on the budget and then we have an ongoing legal snarl, this conflict in all sorts of different courts, again, like we saw with the travel ban? So the question is, is there a true benefit to the president? I’m not sure that there is. It’s almost like it’s easier to try and work out some sort of agreement with Congress than to do this.”
McDaniel assessed that Congress had abdicated too much of its power to the presidency across recent decades.
“Congress has got to step up here, a little bit,” declared McDaniel. “The way that the act is written, it allows a president to continue a national emergency annually. If he certifies annually that there’s an ongoing emergency, then it can continue. We’re still working under the same emergency declared by president George W. Bush in 2001. Maybe we would be better served if … that emergency declaration was more finely tuned for the fight we’ve got against terrorists in different countries now, instead of going on the previous one. Every other continuing emergency that we’ve got is involving economic sanctions against a foreign power such as Iran or Russia.”
McDaniel said, “The whole point of declaring a national emergency is so that the president then has the authority to redirect funds. So Congress has, in essence, delegated to the president the congressional authority to spend funds for a certain project. If the funds haven’t been specifically appropriated and spent, then the president can reuse those funds. So when we’ve got something like terrorist activities in different countries in Africa and Iraq and Afghanistan, if the executive branch of government is able to show that it has originated, has been spawned by some Al Qaeda-type group from the beginning or ISIS, or is related to those groups, or has a similar ideology, then it’s felt that it’s still part of that original declaration. There are some funds that are in the budget specifically to fight terrorism, but they can still reallocate funds as needed under that declaration.”
McDaniel stated, “The oldest [ongoing emergency] is the sanctions against Iran that was instituted by President Carter in 1979. That one’s still in effect because every president since has reauthorized it annually so that the Department of Treasury can continue sanctions against Iran.”
McDaniel warned of increasingly broadening definitional parameters for national emergencies.
“Do we want them declaring a national emergency over global warming or guns in urban environments or rural environments?” asked McDaniel. “Whatever you come up with. At some point, I think Congress needs to reassert their authority here, because they’ve delegated their authority to the president. … I think they should be a little more jealous of their own powers, a little more guarded with their own powers than they have been. They’ve ceded too much to the president, whichever side of the aisle you want to say, because again, this has been going on since 1979.”
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