Opinions

Could Emergency Powers Build the Wall?



President Trump has threatened repeatedly to invoke emergency powers to build his wall on the southern border if Congress refuses to provide funds for it. By the time you read this, Mr. Trump may have announced this step in his address from the Oval Office.

I suspect most people’s first reaction is the same as mine: He can’t do that. But a deeper dive into the subject reveals a more complicated and contested state of affairs.

On the one hand, Article I, Section 9 of the Constitution contains seemingly definitive language: “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” In 1884 Congress enacted the Antideficiency Act, which forbids spending more on a line item than Congress has appropriated and prohibits the government from committing to future spending before Congress has approved it.

On the other hand: Though the Constitution grants the president no general emergency authority, Congress has enacted laws giving the president specific powers to cope with particular crises. Thanks to a prescient study last year by the Brennan Center for Justice at New York University, we know that there are 123 statutory provisions letting a president take wide discretionary action without additional backing from Congress.

One of these statutes, a military-construction authorization law enacted in 1982, gives the defense secretary the power to undertake “military construction projects . . . without regard to any other provision of law” once the president has declared a national emergency. In carrying out these projects, the secretary may use any and all funds appropriated for military construction and not already obligated for other purposes. (Last September, President Trump signed a bill appropriating $10.3 billion for military construction during fiscal 2019.) The president has made it clear that he regards unauthorized border crossings as a threat to national security and already has deployed thousands of military personnel to help thwart them. He could argue that a wall on the southern border is military construction within the intention of the law.

Though the president’s statutory authority is broad, it is far from unlimited. In the first place, the president must declare an emergency under the terms of the National Emergencies Act, adopted in 1976 to bring order to a chaotic heap of emergency powers dating back decades. The law requires the president to specify which statute authorizes his declaration, and Congress then has an opportunity to disapprove the president’s action.

As originally drafted, it took only a majority of the House and the Senate to terminate a presidential emergency declaration. But after the Supreme Court in 1983 struck down a law that allowed a single congressional chamber to reverse a presidential action, Congress amended the National Emergency Act to bring it into line with the constitutional requirement for two-thirds of both chambers to override a veto—a high hurdle, especially in our polarized times.

The other check on the president’s emergency power comes from the judiciary. Once an emergency declaration is announced, some plaintiffs may have standing to challenge it on statutory or constitutional grounds. Though courts often defer to presidents’ judgment, in this case they may opt to explore the factual underpinnings of the declaration to determine whether it has a rational basis within the statute, and whether it gives powers to the president that Article II of the Constitution does not permit.

Not everyone who objects to the declaration is entitled to challenge it in court; would-be plaintiffs must make a credible showing that the declaration would injure them in some way. Because the federal government does not own all the property needed to build a contiguous southern border wall, it would have to use eminent domain to seize land that property owners refuse to sell. Standard eminent domain requires just compensation for owners, but the Supreme Court has ruled that in some cases the military can seize property without compensation if necessary for urgent military purposes. Either way, aggrieved owners would probably be considered to have standing to challenge the government’s action, opening the door for courts to review it.

Eminent constitutional scholars, including many who are no fans of President Trump, disagree on whether the president has the authority to build the wall via a national emergency. Yale’s Bruce Ackerman argues that such action would be illegal and that military personnel who assisted would be breaking the law. Harvard’s Mark Tushnet, in contrast, says that the president would be on “very solid legal ground.” Taking a middle position, University of Texas law professor Stephen Vladeck observes that “we’re in uncharted territory,” adding that there’s a long list of statutes that “give far too much power to the president but that we didn’t used to worry about because we assumed there would be political safeguards.”

It’s time to start worrying.



READ SOURCE

Leave a Reply

This website uses cookies. By continuing to use this site, you accept our use of cookies.