Can the President Declare a National Emergency to Build the Wall?

January 10, 2019


President Trump and congressional Democrats remain at an impasse over a White House proposal to fund the construction of a southern border wall. The president has said that if Congress decides not to appropriate the funds, then he will “probably” declare a national emergency to circumvent Congress and build the wall. On this episode of We the People, we ask: what would happen if the president decided to declare a national emergency and divert military funds to build the wall? What statutes could he rely on? And would such an action be constitutional? Host Jeffrey Rosen and guests Mark Tushnet of Harvard Law and Sai Prakash of University of Virginia Law explore the constitutional clauses, cases, and laws at issue in this hotly contested debate, including the Take Care, Appropriations, and Takings Clauses of the Constitution, the Youngstown Sheet & Tube Co. v. Sawyer case, and the National Emergencies Act of 1976 and related statutes.  


Note: An early transcript of the podcast is linked here. This text may not be in its final form, accuracy may vary, and it may be updated or revised in the future.


Sai Prakash is James Monroe Distinguished Professor of Law at the University of Virginia Law School where his scholarship focuses on executive power and separation of powers. He is the author of Imperial from the Beginning: The Constitution of the Original Executive and a contributor to the Interactive Constitution Article II explainers on The Vesting Clause and Article II Section 3.

Mark Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School specializing in constitutional law and history and skeptically studying the practice of judicial review. He is the author of numerous leading casebooks on constitutional law, and his most recent book is The Constitution of the United States of America: A Contextual Analysis.

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 

Additional Resources

Our Interactive Constitution is the leading digital resource about the debates and text behind the greatest vision of human freedom in history, the U.S. Constitution. Here, scholars from across the legal and philosophical spectrum interact with each other to explore the meaning of each provision of our founding document. 

Article II, Section 3 by William P. Marshall and Saikrishna B. Prakash

Appropriations Clause by Kate Stith

This show was engineered by Greg Scheckler, and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott.

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