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Can the President declare a national emergency to build a border wall?

Monday, February 18, 2019

 President Trump last week signed a bipartisan spending bill, included $1.3 billion for “construction of primary pedestrian fencing” along the southern border.  This was less than the $5.7 billion that President Trump requested for wall construction, a key promise made during the campaign.  After singing the bill, the President declared a national emergency, announcing he will use emergency authority to “reprogram” other funds to build a border wall.

What the Constitution says.   Article I, Sec. 9, of the Constitution gives Congress authority over federal spending: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . .”

However courts have long-recognized that Presidents can take actions during emergencies even when specific statutory authority is lacking.  President Lincoln, for example, relied upon emergency powers to blockade southern ports and do other things during the Civil War.

Use of the emergency power however is limited?  In 1952, the Supreme Court prevented President Truman from seizing control of U.S. steel mills to prevent a labor strike during the Korean War.  The President’s actions would have contradicted the Taft-Hartley Labor Relations Act, passed in 1947 over Truman’s veto.  The opinion by Justice Robert H. Jackson in that case is today used by most legal scholars to assess executive power.  Jackson said presidential authority must be analyzed relative to what Congress does.  When the president acts in defiance of Congress, as opposed to when he has been given express authority by Congress or Congress has been silent, then his authority is at its “lowest ebb.”

Since Congress already acted on President Trump’s request for wall funding and prohibited the use of other funds for wall construction, his authority to act is at a low ebb under Justice Jackson’s analysis.  However, since President Trump’s emergency proclamation relies mostly on statutory authority, it is likely that any legal challenges will not be decided on constitutional grounds.

What statutes say.  The National Emergencies Act (NEA) of 1976, gives the president broad power to proclaim national emergencies.  The Act is silent regarding what constitutes an “emergency” but it specifically provided Congress could terminate emergency declarations by the President.

The NEA originally arose out of Watergate concerns of presidential overreaching, and was introduced in the Senate by Senator Church. As enacted in 1976, it permitted l termination of presidential emergencies through a concurrent resolution that required only a simple majority vote from both houses of Congress.  Under the law, the House of Representative initiates the process, and the Senate must vote on the House resolution within 15 days.

As a result of an unrelated Supreme Court decision in 1983, however, the termination process under the NEA was amended.  Congress must now use a joint resolution to terminate an emergency, which, after passing both houses, is presented to the president and can be vetoed.  Should the president veto the resolution, Congress would need a two-thirds supermajority in both houses to override, a much higher standard.

If Congress does not terminate President Trumps’ emergency declaration, it is unclear how courts will rule on claims his declaration is not based on an actual emergency but is instead an effort to get something Congress refused to authorize.  Nothing in the text of the NEA restricts for what President’s may declare emergencies, so courts may conclude that his judgement is non-reviewable.  On the other hand, courts might look to the intent of Congress and conclude that courts must independently review whether an emergency, as Congress envisioned in passing the NEA, actually exists.

Even if courts refuse to review what constitutes an emergency under the NEA, the declaration of an emergency does not provide blanket authority to the President to act however he wishes.  It instead serves simply to activate other statutory provisions that authorize Presidents to take particular actions during emergencies.   For example, separate provisions in the federal code, 33 USC 2293(a) “Reprograming During National Emergencies” and 10 USC 2808(a) “Construction authority in the Event of a Declaration of War or National Emergency”, authorize the president to move around Defense Department construction funds during an emergency if it is “essential to the national defense” or “necessary to support (the) use of the armed forces.”

When President Trump relies upon these or other statutory provisions to reprogram funds to build a wall his action will certainly be challenged as inconsistent with the language or intent of these laws.  Law suits brought under these ancillary statutes, rather than challenges brought under the Constitution or the NEA, are most likely to produce adverse rulings on President Trumps’ plan to build a wall using emergency powers.

You can read a Congressional Research Service report on the history and practice of executive emergency power, and the legislative history of the 1976 Act at: https://fas.org/sgp/crs/natsec/98-505.pdf