Ordinary times, extraordinary measures: Trump considers a national emergency for the wall

Why is Barack Obama constantly issuing executive orders that are major power grabs of authority?—Donald Trump, July 10, 2012

During the election, comic Roseanne Barr quipped that she wanted Donald Trump to win, if for no other reason than to give comedians plenty of material. President Trump supplies fodder for another profession: the constitutional lawyer. Today’s tripwire is the national emergency, and whether the embattled Trump can declare one in order to begin construction on his border wall.

(United) states of emergency

National emergencies are so much a part of the nation’s essence that the first one was declared in the days before the United States became a nation at all.

The Continental Congress bypassed the legislative process to deal with events that arose during the Revolutionary War by passing a series of acts from 1775 to 1781.

President Washington was of course the first president—and the first president to declare a national emergency, when he seized control of state militias to quell the Whiskey Rebellion by establishing the Militia Acts of 1792. During the Civil War, Lincoln declared a national emergency to blockade the Southern states, bypassing Congress and suspending habeas corpus.

More recently, President Bush invoked his emergency powers during 9/11, Carter did so during the Iran hostage crisis, and Obama invoked his during the H1N1 outbreak.

Trump himself has three unrelated national emergencies in effect now, while 28 remain in effect from previous administrations.

The fire this time

Because Trump is frustrated that Congress will not appropriate funds for him to begin construction of his proposed border wall, he has warned that he will declare a national emergency to bypass Congress.

Given the way the government is structured with its separation of powers among the three branches of government, this doesn’t sound right to us. We take little notice when a president declares a national emergency in order to respond to a hostage crisis, terrorist attack, or a disease epidemic, and we may even support the idea. This time, we’re paying attention, asking: Can the president declare a national emergency to sidestep Congress when he doesn’t get what he wants?

The answer is yes, but of course it’s complicated.

The president’s emergency powers

What constitutes a national emergency isn’t defined very well in any legislation.

The truth is, very little is required for the president to declare one.

Following the Watergate scandal, when the nation had become wary of leaving too much power in the president’s hands, Congress passed the National Emergencies Act, 50 U.S.C. § 1601 (1976).

The Act limited the president’s ability to declare a national emergency. Under the Act, the president must formally declare the national emergency to Congress and must specify under which law he’s invoking the power. (Example: President Bush issued Executive Order 13224 on September 23, 2001, invoking his emergency powers under the Emergency Economic Powers Act in order to impede terrorist’s ability to fund their activities.)

Still, 136 different statutes allow the president to invoke emergency powers under various scenarios, and his power is broad.

Can Congress stop him?

Yes, but they are unlikely to do so.

Under the Act, Congress can terminate the president’s decree with a joint resolution, but that requires the president’s signature, which he would not give in this situation.

Congress can then override the president’s veto, but they would need a two-thirds majority vote in both chambers, and that is unlikely to happen.

If Trump declares an emergency, he will be successful.

Money problems

Perhaps Trump’s biggest problem is funding, and declaring a national emergency won’t solve that.

Even if Trump bypasses Congress, he must also point to statutory authority that allows him to reallocate funds for the wall, and that will be difficult to do.

Trump’s best chance at redirecting funds would be to get the money from the military by invoking his emergency powers found in 10 U.S.C. § 2808 and 33 U.S.C. § 2293.

To make this pass Congressional and constitutional muster under these statutes, he would have to show two things: 1) That border security here requires the use of the military and 2) That the wall itself is military construction. That’s nearly impossible to do, in part because border security is not the purview of the Department of Defense but of the Department of Homeland Security.

Few if any members of Congress (including and especially conservative Republicans) support the use of military funds and/or personnel to assist in this massive public works project. They argue that military funds are needed for, well, the military—particularly for recent proposals furthered by Trump himself.

The courts

Assuming Trump accomplishes all of this and manages to bypass Congress, lawsuits can be filed in federal court to stop him from invoking his emergency powers under these (or any other) statutes.

The cause of action is clear-cut, so now all you need is a plaintiff with standing (a person who is affected by the action and who has therefore got the right to bring the case before the court).

Here, you’ve got many plaintiffs with a good cause of action in the form of the landowners along the border. These landowners are already prepared to sue and in some cases have already got lawyers in place. This includes the members of the Tohono O’odham Nation, the Indian tribe. Other possible plaintiffs would be the governments of the four states that line the border, especially various water boards and other agencies.

This case would reach the Supreme Court, a Court that Trump feels confident would be sympathetic to his cause. His confidence is misplaced, because the conservative justices are constitutional originalists who value property rights and the separation of powers. If you doubt this, read Thomas’ dissent in the Kelo case—and Gorsuch’s emails praising it.

Three-dimensional chess?

Trump’s wall is hindered by problems of funding and land acquisition, and this doesn’t change in a national emergency. In his attempts to bypass Congress and the constitution, Trump continues to build a wall, but it’s not the one he intended.