President Trump Declares National Emergency to Facilitate Border Wall Construction

President Trump Declares National Emergency to Facilitate Border Wall Construction

After the longest government shutdown in US history ended and a second shutdown was narrowly avoided, President Trump could secure only $1.375 Billion to pay for construction of a much-heralded wall along the United States’ southern border. This amount is far below its estimate cost.

On February 15, 2019, President Trump declared a national emergency to allow him to secure funding to pay for the wall’s construction.[1]

As the Constitution is silent on national emergencies and, certainly, nothing about declaring a national emergency inherently generates extra cash to be disposed of by the President, what is this national emergency and how does it help generate funds for a border wall? To answer, let’s take a step back and look at the big picture.

The United States government is based on a “separation of powers” principle. Congress has the power to make laws and the President, mainly through control of the military, federal law enforcement and administrative agencies, enforces it.

It is plainly Congress who controls the Constitutional purse strings. When Article I, Section 8 of the Constitution lists Congressional powers, the very first one it lists is the power to “collect taxes… to pay the debts and provide for the common defense and general welfare of the United States.”

Whether the President‘s executive apparatus must always spend every dollar Congress allocates is unclear, as many Presidents, starting with Thomas Jefferson, have “impounded” Congressionally earmarked money rather than spend it. But what is clear is that the President cannot spend money NOT allocated by Congress. Government “shutdowns” that happen from time to time result from Congress and the President being unable to agree on funding legislation.

Still, it is well settled that the rules must be somewhat flexible in times of national emergency.[2] Congress has passed many bills authorizing the President to take extraordinary steps in extraordinary circumstances.[3] President Franklin D. Roosevelt declared national emergencies to deal with the great depression and during World War II. [4] President Truman declared a national emergency to nationalize steel mills during the Korean War, though this action was later reversed by the Supreme Court.[5]

After conducting a comprehensive study on national emergencies and how they’d been used,[6] in 1976, Congress passed the National Emergencies Act.[7] It retained for the President the power to declare emergencies,[8] but imposed certain requirements for the declaration and maintenance of the emergency state. Germane to our discussion, the law allowed there to be “enacted into law a joint resolution terminating the emergency.”[9] It also requires emergencies to be renewed each year, lest they lapse[10]  and it requires the President to specify “the provisions of law under which he proposes” to act[11] and imposes reporting requirements to Congress.[12]

            Every President has used the National Emergencies Act, and many of these states of emergency are still in effect.[13]

While a declaration of emergency doesn’t give the President to authority to bypass Congress and allocate federal funds, it does give the President a variety of powers, including re-purposing funds from other activities.[14] In fact, we don’t really know the extent to which the President can act in national emergencies, an uncertainty that has raised some consternation amongst analysts.[15]

The Trump declaration of emergency proposes to cobble together the funds to build the wall by re-purposing $3.6 Billion from other military construction, $2.5 Billion from anti-drug activities, $600 Million in drug forfeitures currently held by the Treasury Department on top of the $1.375 Billion allocated by Congress in the latest budget deal.[16]

            So, the next question becomes whether the emergency declaration and the funding of the border wall can be stopped and whether the declaration and re-purposing of the funds is legal. Of course, the questions are one and the same as the most direct way to stop the action is to have it declared illegal.

            There are three principal mechanisms by which the Trump border wall plan can be thwarted.

1. Lawsuits

            Members of Congress, government officials, civic organizations and private citizens have already commenced preparing lawsuits to stop the emergency declaration and enjoin construction of the wall. At the core of the lawsuits are the allegations that the declaration was an abuse of executive power and that southern border security is not a national emergency. It has been pointed out that President Trump’s statement at a February 15 press conference that he didn’t “have to” declare a national emergency but did so because it would be faster,[17] seemingly helps make the case that this is not a true emergency.

            While lawsuits may garner some preliminary injunctions against the project, as President Trump himself conceded,[18] getting the Supreme Court to agree to reverse a presidential declaration is very difficult. Aside from the substantive issue, two powerful doctrines stand in the way of the courts stopping the construction: the “standing” doctrine and the “political question” doctrine.

            The “standing” rule requires anyone bringing federal lawsuits to show injuries-in-fact to themselves.  Under this doctrine, in Lujan v. Defenders of Wildlife, the Supreme Court dismissed a case brought by environmentalist organizations seeking to stop habitat destruction because they didn’t show injuries to themselves, personally.[19] Plaintiffs need to show what they’re personally harmed to show standing, a difficult hurdle when challenging the building of a wall. Members of Congress alleging that their constitutional powers have been ignored or overridden have likewise faced similar obstacles, as has happened many times when members of Congress have challenged presidential actions under the 1973 War Powers Resolution.[20]

The political question doctrine allows courts to dismiss cases when:

1.    The Constitution shows a commitment of the issue to other branches of government,

2.    There’s a lack of manageable standards for resolving the issue,

3.    The policy decision involved clearly anticipated nonjudicial discretion,

4.    The case result might express a lack of respect for coordinate branches of government,

5.    There’s a need for adherence to policy decisions already made, and/or

6.    There’s the potential for embarrassment from multifarious pronouncements by various government departments. [21]

Many of these factors could arguably militate in favor of allowing the executive and legislative branches to settle this issue on their own. Certainly, foreign policy is normally left to the President, it would be hard to clearly define “national emergency,” the policy decision to build the wall has been made by the executive branch already, and so forth.

2. Congress can Negate the Emergency

            The National Emergencies Act allows Congress to end a declared emergency with a resolution. While such a resolution would almost certainly pass the House of Representatives, wherein Democrats hold the solid majority, passage through the Senate would require at least four Republican Senators to vote against the President. While more than the number of Republicans have expressed skepticism or wariness about the emergency declaration,[22] whether they would vote against the President is unclear. Moreover, President Trump could simply veto the resolution (as he could any other bill). Any such veto would be the first of the Trump administration and would no doubt be politically unpopular, but it’s unlikely that President Trump would be willing to take the dramatic step of declaring a national emergency only to balk at taking the less drastic step of vetoing legislation.

3. Eminent Domain

            A third possibility of stopping or delaying construction of the border wall may lie with the landowners themselves. The wall would have to traverse private property in many areas and, while many would undoubtedly sell the necessary land to the federal government voluntarily, there are equally undoubtedly those that won’t, either for political or practical reasons.

            While the federal government has the power of “eminent domain” to seize private land for “public use,” the Fifth Amendment requires the government to provide just compensation for any such condemnation.[23] While building the wall would almost certainly quality as a public use,[24] landowners may dispute government value assessments. While this probably only has the potential to delay, not stop, the construction of the wall, injunctions against takings while values are determined could certainly stall the wall’s construction, maybe even until the political winds change.

            Whatever happens from this point forward, this precedent-setting national emergency declaration promises to have far reaching impacts and the legal battles over it bears careful watching.