Congress Gave Presidents Emergency Power Needed to Build Border Wall Back in 1976

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The 1976 National Emergencies Act gives presidents sweeping authority, including an express allowance to declare an “immigration emergency” to deal with an “influx of aliens which either is of such magnitude or exhibits such other characteristics that effective administration of the immigration laws of the United States is beyond the existing capabilities” of immigration authorities “in the affected area or areas.” The basis for such an invocation is generally worded and includes the “likelihood of continued growth in the magnitude of the influx,” rising criminal activity, as well as high “demands on law enforcement agencies” and “other circumstances.

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That’s not entirely accurate. The 1976 National Emergencies Act–contained at 50 U.S.C. Chapter 34–contains exactly zero mentions of the word “immigration” and similarly no references to any sort of “express allowance” for U.S. presidents to declare immigration emergencies.

In fact, the language used in the above paragraph isn’t from the National Emergencies Act at all. Rather, that language is culled from definitions contained in the Code of Federal Regulations–contained at 28 CFR 65.81–as they relate to judicial administration and their grant of statutory authority comes from 8 U.S.C. and 42 U.S.C.

In other words: there doesn’t appear to be any genuine connective tissue between the National Emergencies Act and the definition language used by Turley in his article.

Law&Crime reached out to Turley for clarification on this issue. In an emailed response he said:

Turleys Response:

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Two lines were conflated for space, but the point is that the Act allows for the declaration of national emergencies and the federal law includes specifically defined immigration emergencies. In reality, the Act does not even require such a reference to a category of emergency. However, federal law already recognizes immigration emergencies as a defined category for executive action. There is no case [connecting the Act to the definitions cited] that I know of because presidents have been subject to little judicial review in the ascertain of the powers under the Act. However, the “connective tissue” is the preexisting recognition of immigration emergencies under federal law. If Trump declares tonight, the Justice Department can cite the CFR as a long-standing recognition of this type of border emergency.

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Speculation is building that Trump will mention the CFR as his legal basis for building the Wall.