President Trump is continuing to leave open the possibility that he might declare a national emergency and try to authorize a controversial wall on the southern border on his own if Congress won’t approve the $5.7 billion he’s asking for.
‘‘I think we might work a deal, and if we don’t, I might go that route,’’ he said Wednesday.
A number of legal experts have weighed in on the concept. Here’s a roundup from around the Web of what they’ve been saying:
Can he declare a national emergency?
Elizabeth Goitein of the Brennan Center for Justice told PBS that the president has almost unlimited discretion, under a 1976 law, to declare a national emergency. She said there is no definition of a national emergency in the law or any requirement for the president to make any kind of showing that a declaration is needed. “So, really, all the president has to do under the act is issue a declaration that he signs saying that he thinks there’s a national emergency,” she said.
What do the law and Constitution say?
Goitein says the 1976 law, called the National Emergencies Act, authorizes a wide range of special powers that are contained in a host of different laws that have been passed over several decades, including some that could allow him to get money to spend for his border wall.
The Constitution, on the other hand, is relatively silent on the topic of emergency powers, Harvard law professor Noah Feldman said in a Bloomberg Opinion column. Feldman notes that Article I, Section 9 allows for the suspension of habeas corpus in cases of rebellion or invasion. But he continued, “From the fact that the suspension clause exists, you can deduce something very basic to the U.S. constitutional system: There are no other inherent constitutional emergency powers.”
What kind of issues would be raised by such a move?
A number of issues would be raised if Trump took the unusual and controversial step, the experts said. Here are a few:
Is it really an “emergency”? Walter Dellinger, head of the Justice Department’s Office of Legal Counsel during the Clinton administration, told The Washington Post that one issue in a potential court battle would be the definition and validity of the “emergency.” He said his former office must “determine that there is actually a basis” for an emergency declaration and “resign if there is not.” Bobby Chesney, a professor at the University of Texas law school, also told the Post that a lot would depend on how the Trump administration defines ‘‘emergency’’ and whether it is convincing to the courts. ‘‘I think most of us fully understand there is no emergency,’’ he said. ‘‘But it doesn’t follow that everyone will see it that way.’’
Is it constitutional? Feldman argued that “the Constitution doesn’t contain any national emergency provision that would allow the president to spend money for purposes not allocated by Congress.” He argues that the 1976 law gives presidents “varied and broad” powers, “but none of them can displace the Constitution itself. And it is the Constitution that says the Congress appropriates money and the executive spends it.” Erwin Chemerinsky, University of California School of Law dean, agreed in a Los Angeles Times op-ed, “The Constitution is clear that Congress controls the power of the purse and must approve the spending of all federal money. No exception to this is mentioned in the Constitution or has ever been recognized by the courts.”
Does the fact that the Congress hasn’t supported the wall make things worse for Trump? Feldman said it’s even worse for Trump’s argument that Congress is not backing the wall. “It’s crucial to this analysis that we know for certain that Congress doesn’t want the president to spend money on his wall. The prior Congress chose not to give this funding to Trump. And the current Congress has made the same choice. That makes spending on a wall very different from discretionary expenditures that past presidents have sometimes made without direct authorization.”
Is it legal? If Trump declares an emergency, Goitein said, he can only move to build the wall if he acts under one of the specific laws mentioned in the National Emergencies Act. Goitein said there were a couple of laws that allowed the president to move money around within the Department of Defense. “And I’m sure those are the powers that the White House lawyers and the Department of Defense lawyers are looking at very closely right now,” she said. Harvard law professor Mark Tushnet told NBC News, “My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground.”
Can the military be used to build the wall? Yale Law School professor Bruce Ackerman wrote in a Washington Post op-ed that Trump could not deploy the military to build the wall. Ackerman said that from the beginning of the nation the “American constitutional tradition has profoundly opposed the president’s use of the military to enforce domestic law.”
Can the government seize property from landowners for the wall? University of Pittsburgh School of Law professor Gerald S. Dickinson also saw possible problems with the military, without congressional authorization, seizing private land along the border, which would be necessary to build the wall. The military has, in some cases, been given the power to seize land, he said. But he said in an op-ed for The Hill that the 1953 Youngstown v. Sawyer ruling, which struck down President Truman’s seizure of steel mills during the Korean War, “noted that the president does not have the power to order the military to seize private property and that the power is the ‘job for the Nation’s lawmakers, not for its military authorities.’ ”
What will happen next?
No one knows what will ultimately happen if Trump resorts to this controversial tactic. But in the short term, if he tries it, legal challenges are likely, according to the nonpartisan National Constitution Center’s survey of the debate.