Lawyers: President Trump Can Cite a National Emergency to Build the Wall

January 8, 2018

Neil Munro

The New York Times reported:

The Trump administration could point to two laws and say they allow officials to proceed with building a border wall without first obtaining explicit authorization and appropriations from Congress, according to Elizabeth Goitein, who oversaw the Brennan Center’s study and is a co-director of its Liberty and National Security Program.

One of the laws permits the secretary of the Army to halt Army civil works projects during a presidentially declared emergency and instead direct troops and other resources to help construct “authorized civil works, military construction and civil defense projects that are essential to the national defense.”

Another law permits the secretary of defense, in an emergency, to begin military construction projects “not otherwise authorized by law that are necessary to support such use of the armed forces,” using funds that Congress had appropriated for military construction purposes that have not yet been earmarked for specific projects.

“I think that it’s possible that the president could declare a national emergency and then rely on authority Congress has historically granted for exigencies to free up some funds to support constructing a barrier along the border,” William Banks, a Syracuse University law professor and the author of the 1994 book National Security Law and the Power of the Purse, told the New York Times.

According to the Wall Street Journal:

Currently, $13.3 billion in the Pentagon budget may be available, according to a congressional aide, enough to cover the $5 billion that Mr. Trump is seeking for the border wall. That would have to be diverted from projects such as military housing that Congress previously authorized.

Steve Vladeck, a law professor at the University of Texas at Austin, said that without a statutory definition of “emergency,” courts are unlikely to second-guess the president’s judgment on that. The National Emergencies Act envisions that political checks, rather than litigation, will prevent abuse of executive authority, Mr. Vladeck said.

The Los Angeles Times said:

Legal experts say the act gives the president the power to declare a national emergency. But the act does not require presidents to prove a crisis exists to declare an emergency — it’s at their sole discretion.

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Congress can terminate a declared emergency, but it requires a two-thirds majority in both chambers, according to Loyola law professor Jessica A. Levinson.

[Kim Lane Scheppele, a legal scholar and professor at Princeton University’s Center for Human Values] said if Trump “continues to make the case that the wall is necessary to prevent terrorists from entering the U.S., then he may be able to make the case that building a wall has a military purpose and he has a freer hand.”

The President is now asking Congress for $5.7 billion to fund a wall in 2019. Overall the wall is expected to cost roughly $20 billion to build.

White House officials are increasingly emphasizing the cartels’ role in smuggling labor and drugs into the United States. The cartels “are massive criminal enterprises,” Homeland defense secretary Kirstjen Nielsen told reporters January 7. “They don’t just deal with smuggling. They exploit children. They deal with trafficking, they deal with drugs.” That emphasis will help officials fend off commonplace Democratic claims that Trump’s support for the border wall is merely an expression of racial animus.

Many GOP and Democratic politicians will likely dislike any emergency declaration because Trump would redirect funding from their districts to the border wall in Texas and California. But it is not clear that majorities in the House and Senate could formally override the President’s emergency powers.

The Washington Post reported that Democrats are objecting to the emergency construction — but are not arguing that the policy is clearly illegal:

Jeh C. Johnson, who served in the Obama administration as secretary of homeland security and general counsel of the Defense Department, said the laws Trump could invoke with his national emergency declaration are designed to authorize military construction projects during wartime. He said using them for a border wall could curtail presidential powers in the years to come as lawmakers react to Trump and work to constrain him.

“The danger of using an authority like this and stretching it beyond its intended use is that Congress could then take it away, and it could not be used in situations where it’s really needed,” Johnson said.

Robert F. Bauer, a White House counsel under President Barack Obama, said Trump would be poorly positioned to defend such an action in federal courts, in part because his statements about the wall have been contradictory and have contained provable falsehoods.

A Democratic staffer told the Wall Street Journal that Democrats would object to the President’s use of the emergency laws, implicitly admitting the policy would be likely legal:
“We would look at every available [option] to stop this power from being abused, and that would range from a court challenge to changes to future appropriations bills” to block any construction of the wall, a Democratic House aide said.

The Democrats’ legal case against the border wall is also limited by the ideological nature of their objection to the wall. The wall is a symbolic rejection of America’s welcome for migrants, House Speaker Nancy Pelosi told an MSNBC event on January 4, saying “it builds walls in people minds about who should come here.”

Trump and White House officials are touting the emergency option, which may be announced by Trump in his pending January 8 national address. On January 7, Vice President Mike Pence told reporters:

On the national emergency, let me say, the President said in front of all you, just the other day, that it’s something that he’s considering looking into. He’s made no decision on that.

I will say that one of the [alternative] ways that Congress can find the resources for this is through an emergency [funding] supplement. And we did indicate to them, over the course of this weekend, that we would be willing to work with them on forming an emergency supplemental for some of the resources — the additional resources we’re asking for.

The focus on the President’s emergency powers comes after GOP and Democratic leaders jointly blocked the President’s campaign promise to build a border wall. So far, the President has managed to get just $3.2 billion for wall construction, and most of that spending is limited by rules governing the types and location of wall construction.