Using A ‘National Emergency’ To Build A Border Wall Would Be Illegal
President Trump is claiming that he could use authority to declare a "national emergency" to build his wall even if Congress doesn't authorize it.
As the shutdown over Congress’s refusal to provide $5 billion in funding for President Trump’s border wall, or steel fence or whatever you might want to call it, the President is threatening to take extraordinary steps to get what he wants:
WASHINGTON — President Trump raised the possibility on Friday of declaring a national emergency to allow him to build a wall along the southwest border without congressional approval, hours after Department of Homeland Security officials requested additional support to erect temporary barriers between the United States and Mexico.
Mr. Trump’s comments followed a contentious meeting with Democratic leaders at the White House. It failed to produce a deal to end the two-week partial shutdown of the federal government, a funding lapse that began with the president’s insistence that Congress allocate $5.6 billion for the wall.
“We can call a national emergency and build it very quickly,” Mr. Trump told reporters in the Rose Garden when asked about an emergency declaration.
Asked if his claim was intended to scare Democrats into making a deal, he replied, “I never make threats.”
Under the National Emergencies Act of 1976, presidents are allowed to take unilateral action in times of crisis, provided they notify Congress, specify the circumstances that necessitated the declaration and document all uses of executive authority that are covered by the emergency.
Officials at the Homeland Security, Justice and Defense Departments have researched the issue for Mr. Trump. However, no emergency order has been drafted or approved, one official with knowledge of those plans said.
The Homeland Security Department submitted an official request for assistance from the Pentagon on Friday, a Defense Department official said. But the military has yet to determine what resources are needed and if any additional troops are required for the mission, the official said.
The moves come as the president finds himself trapped between a central campaign promise to build a wall and rising anxiety among Republicans over political damage inflicted by a shutdown that Mr. Trump has defiantly owned.
Before getting to the legal issues, the idea that there is any factual support for the idea that conditions on the southern border have reached a point where it is even appropriate to begin talking about declaring a “national emergency” is utterly absurd. As numerous reports have indicated net migration from Mexico has reversed to the point where more people have been leaving the United States to return home than have been trying to get into the United States either legally or illegally. As for the Central American caravans that Trump has complained about, those people have generally presented themselves at designated ports of entry so that they can properly make their asylum claims pursuant to both Federal law and international treaties to which the United States is a signatory. Additionally, contrary to Trump Administration claims, the majority of importation of illegal drugs occurs at either designated ports of entry or via the nation’s airports and seaports. To the extent that there is extensive drug running across the border, much of it is conducted via tunnels that would bypass any border wall this President would build. The Administration has also claimed, without evidence, that terrorists have crossed into the United States via the southern border. As Fox News Sunday host Chris Wallace established in an interview with White House Press Secretary Sarah Huckabee Sanders yesterday. In short, there is no factual basis for the declaration of a national emergency.
Not surprisingly, the possibility of Trump essentially making an end-run around Congress to get his wall built has raised serious legality issues as well as objections from Congressional Democrats, and Yale Law Professor Bruce Ackerman argues in a recent New York Times Op-Ed that the President does not have the legal authority to declare a national emergency to get his wall built:
Begin with the basics. From the founding onward, the American constitutional tradition has profoundly opposed the president’s use of the military to enforce domestic law. A key provision, rooted in an 1878 statute and added to the law in 1956, declares that whoever “willfully uses any part of the Army or the Air Force” to execute a law domestically “shall be fined under this title or imprisoned not more than two years” — except when “expressly authorized by the Constitution or Act of Congress.”
Another provision, grounded in a statute from 1807 and added to the law in 1981, requires the secretary of defense to “ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)” must “not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”
In response to the Hurricane Katrina disaster in New Orleans, Congress created an express exception to the rules, and authorized the military to play a backup role in “major public emergencies.” But in 2008 Congress and President Bush repealed this sweeping exception. Is President Trump aware of this express repudiation of the power which he is threatening to invoke?
The statute books do contain a series of carefully crafted exceptions to the general rule. Most relevantly, Congress has granted the Coast Guard broad powers to enforce the law within the domestic waters of the United States. But there is no similar provision granting the other military services a comparable power to “search, seize and arrest” along the Mexican border. Given Congress’s decision of 2008, this silence speaks louder than words. Similarly, the current military appropriations bill fails to exempt military professionals from criminal punishment for violating the law in their use of available funds.
It is, I suppose, possible to imagine a situation in which the president might take advantage of the most recent exception, enacted in 2011, which authorized the military detention of suspected terrorists associated with Al Qaeda or the Taliban. But despite President Trump’s unsupported claims about “terrorists” trying to cross the border, it is an unconscionable stretch to use this proviso to support using the military for operations against the desperate refugees from Central America seeking asylum in our country.
It is even less plausible for the president to suspend these restrictions under the National Emergencies Act of 1976. From the Great Depression through the Cold War, presidents systematically abused emergency powers granted them by Congress in some 470 statutes, culminating in the Watergate fiasco. In response, the first section of the 1976 act terminated all existing emergencies and created a framework of checks and balances on the president’s arbitrary will.
As Ackerman goes on to note, if Trump does intend to act pursuant to this 1976 law, as some have suggested since he first mentioned the possibility late last week, that would just be the beginning of the process and there’s no guarantee his actions would be upheld. Pursuant to Section Five of the act, the House of Representatives has the right to repudiate the President’s declaration of an emergency via an immediate vote that the President would have no authority to stop. The resolution would then be sent to the Senate, which would be required to hold a floor vote on the declaration of an emergency within 15 days after receiving the resolution from the House. This would mean that Senate Majority Leader Mitch McConnell would be powerless to prevent a vote on such a resolution. Approval of the resolution would require just a simple majority. As Ackerman suggests, Trump using his emergency powers to attempt to make an end run around Congress would most certainly lead many in the Senate, including many Republicans to object and this could lead to a sufficient number of defections from Republican ranks to approve the resolution and nullify the President’s attempt to make an end-run around the Constitution, the Rule of Law, and Congress.
On the legal front, there is Supreme Court precedent in favor of the proposition that a move such as this on the part of the President would violate the Constitution. In 1952, while the United States was involved in the Korean War, steelworkers across the nation went on strike over wages and working conditions. The strike was so extensive that it essentially brought steel production in the country to a halt. In response, President Truman, purportedly acting in accordance with his emergency powers as President and Commander in Chief, seized control of the nation’s steel mills so that they could continue operating. As justification for his actions, the President cited the ongoing war in Korea and the fact that any halt in steel production would have an adverse impact on the ability of defense contractors to fulfill the orders placed by the Pentagon to keep troops in Korea supplied with weapons, ammunition, and other material.
Not surprisingly, the steel industry sued and, after an unusual expedited hearing, the Supreme Court ruled against the President and nullified his emergency orders directed toward the steel industry. In its decision in Youngstown Steel & Tube Co. v. Sawyer 343 U.S. 579 (1952) the Court ruled that Truman had acted improperly and that he had neither the Constitutional authority nor the authorization from Congress to take the action that he did even if one assumes that the government was correct about the impact that the strike and subsequent closure of the steel mills would have on the ability of defense contractors to fulfill their obligations and, ultimately, on the war effort in Korea. While the reasoning supporting the majority opinion written by Justice Hugo Black was somewhat confused by the fact that there were no less than five concurring opinions from Justices Frankfurter, Douglas, Jackson, Burton, and Clark. In any case, the general tenor of the Court’s ruling was that the President does not possess the authority to take an end-run around Congress and the Constitution under the banner of declaring a “national emergency.”
Declaration of a “national emergency” isn’t the only thing the President has threatened to do with regard to his border wall. He has also suggested recently that he might try to use money that Congress has allocated to the Defense Department to build the wall, even though Congress has not explicitly organized such an action. As with the idea of a “national emergency,” this action would seem to directly violate long-standing Federal laws regarding the Federal budget such as the Federal Budget And Accounting Act and the Congressional Budget And Impoundment Act of 1974. While this may not matter to the President, it is likely to matter to the courts and to Congress. As with all things related to Trump, it’s difficult to tell if this is a serious proposal or if he is merely trolling the media and Congress with another controversial proposal that will come to nothing. If he’s even the slightest bit serious about attempting to use a “national emergency” to accomplish something that can’t presently be done through normal channels then it will be yet another example of how he has nothing but contempt for the Rule of Law and political norms. Taking yet another extreme step would just be par for the course on his part.