As Congress comes back to town after the long weekend, the first issue sure to come up—in the House of Representatives at least—will be a Joint Resolution to undo the declaration of national emergency to fund a wall on the nation’s southern border. The resolution is sure to pass the House quickly, and if brought up in the Senate would likely pass. The main issue will be whether there are enough votes in both houses to override what is sure to be a presidential veto.
Buckle your seatbelts. If watching C-SPAN is your idea of a good time, this week will be like Super Bowl week all over again.
What, exactly, constitutes an “emergency?
The short answer to that question is, “anything the president says it is.”
The National Emergencies Act (Chapter 34 of Title 50 of the U.S. Code) was a 1976 effort to rein-in the power of the presidency in the wake of the Watergate scandal. It terminated the many existing national emergencies, required the president to declare which emergency powers he intended to use in future emergencies, required a positive, annual declaration that the emergency still existed, and gave Congress the ability to nullify such a declaration by enacting a Joint Resolution into law.
Unfortunately, the act does not define what “emergency” means. Most laws have lengthy definitions sections to avoid ambiguity, but not this one. In the absence of such a definition, “emergency” means whatever the president decides it means.
Because of the statues’ silence, the President has the sole discretion to define what is and what is not an emergency. Whether or not such a declaration is a good idea is an entirely different question. But there can be little doubt that the president has the authority both to declare and to define the emergency.
I have no doubt that some U.S. District Court judge somewhere will disagree, and issue a national injunction in an attempt to block the president’s action. But that injunction will not stand. Those who oppose the White House would be better served amending a bad law.
What can the president do?
The powers the president can exercise during an emergency are sprinkled throughout the rest of the U.S. Code. The most important for this instance is 10 U.S.C. 2808, which is the section of the law that deals with military construction. This section, added to the law in July 1982 (when Republican Ronald Reagan was president, Democrat Tip O’Neill was Speaker of the House, and Republican Howard Baker was Senate Majority Leader) is short and to the point.
In time of war or national emergency “that requires use of the armed forces,” the secretary of defense “may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.”
President George W. Bush invoked this provision in September 2001; that declaration remains in effect, although it’s not entirely clear the extent to which any president since then has exercised this authority.
In this case, the president has already deployed forces to the border. He has now declared that situation to be an emergency. That combination gives him the power to redirect previously appropriated but “unobligated” funds to the border wall (that is, funds that Congress has appropriated for military construction but which have not yet been formally applied towards a contract). Other than overriding the emergency declaration, there doesn’t seem to be much opponents can do.
Military Family Housing in the Spotlight
Last week was a bad one for those in charge of the military’s family housing. In 1996, the DoD began to turn most of its on-post housing over to private companies. In many people’s opinions, the quality of family housing has suffered, not improved. Last Wednesday, the Senate Armed Services Committee’s Joint Subcommittee on Personnel & Readiness and Management Support held a lengthy hearing on this subject. To guide their discussion, the committee commissioned the Military Family Advisory Network to survey residents of privatized military housing.
While the results aren’t necessarily scientific, they are nonetheless discouraging. The MFAN received 16,779 responses between January 20 and February 6, 2019. Of those responses, more than 55% expressed “a negative or very negative experience with privatized military housing.” Complaints ranged from simple delayed routine maintenance to dangerous toxic mold growing in the ventilation system.
The military owns (or used to own) a lot of houses. The Army alone is the seventh-largest housing provider in the country. And of the Army’s 102,200 family housing units, private companies own or manage 87,000 of them, just over 85%. Overall, the DoD has privatized 99% of U.S.-based military family housing. As a consequence, while the stories of substandard housing conditions are horrible, those private companies are ultimately responsible for the maintenance of these units.
The money does not come from the military construction budget. But that distinction is going to be lost on the public.
The DoD hasn’t formally said what construction projects will wind up as “bill-payers” (as they’re called in military budget-speak) for the wall. But the narrative will be that the border fight is draining funds that the Pentagon ought to use to fix the decrepit state of military housing.
It’s a misleading argument, but in this case, the facts will not get in the way of a good story.