It has been about three weeks since President Trump refused
to sign legislation that funded the government, but did not appropriate money
for his border wall, causing a partial government shutdown. With 800,000
government employees poised to miss their first paycheck since the shutdown,
Trump addressed the country on prime time TV to make his case for the
wall. The day after the televised
statement, Trump met with Speaker of the House Nancy Pelosi and Senate Minority
Leader Chuck Schumer to discuss the possibility of re-opening the
government. According to Schumer, Trump
pounded on a table and stormed out the room complaining that the meeting was a
waste of his time when Pelosi made it clear she would not support Trump’s
wall. Schumer has referred to Trump’s
behavior as rule by temper tantrum.
This week, a small number of House Republicans joined House
Democrats in voting for a continuing resolution which would have re-opened the
government without providing funds for the wall. The support from House Republicans possibly
signals growing pressure to end the shutdown and re-open the government. In response, Trump has stepped up his talk of
declaring a national emergency in order to fund the construction of the wall
without congressional approval. Trump
has said multiple times that the law is 100% behind him in declaring the
national emergency.
While the President may want the public to think that this
is a simple question, under U.S. law, this is really two questions. The answer to one may be simple. The answer to the other may not.
The first question is whether the President has the
authority to declare a national emergency.
In answering this question, it is important to keep in mind that the
Constitution does not mention emergency powers of the President. This means that the President would not have
the unilateral authority to claim broader authority than those specifically
granted through the Constitution unless Congress has acted.
In this regard, through the National Emergencies Act of
1976, Congress granted the President the authority to declare a national
emergency through a proclamation published in the Federal Registry. Thus, the
answer to the first question is indeed simple.
Yes, the President may declare a national emergency.
But the President cannot claim unlimited powers through the
declaration of a national emergency.
That is, he cannot use the declaration of a national emergency as a
carte blanche power grab. To the
contrary, the powers available to the President are limited. To define the
breadth of presidential emergency powers, it is again necessary to look to
congressional action.
The National Emergencies Act of 1976 does not itself grant
emergency powers to the President
Congress has passed numerous laws granting the President specific powers
usable during a period of national emergency.
The National Emergencies Act was meant to define how the President may
invoke the emergency powers granted by other statutes.
Before the President can use any emergency power granted by
statute, the President must state the specific power to be used. He can do this either through the original
Proclamation, or through a subsequent Executive Order published in the Federal
Register.
Determining whether the President may use the declaration of
a national emergency specifically to build a border wall requires an analysis
of numerous statues. So far, in his
public comments concerning the wall, Trump has identified the existence of
construction projects that were included in the budget, but for which funds have
not been spent or encumbered.
This points to two specific statutes Trump may be planning
to invoke to fund his wall. The first
permits the reallocation of funds appropriated for military construction
projects that have not yet been obligated:
In
the event of a declaration of war or the declaration by the President of a
national emergency in accordance with the National Emergencies Act that
requires use of the armed forces, the Secretary of Defense, without regard to
any other provision of law, may undertake military construction projects, and
may authorize the Secretaries of the military departments to undertake military
construction projects, not otherwise authorized by law that are necessary to
support such use of the armed forces. Such projects may be undertaken only
within the total amount of funds that have been appropriated for military
construction, including funds appropriated for family housing, that have not
been obligated.
10 U.S.C. 2808.
The second permits the termination of an Army civil works
project that is not essential for national and use the funds for Army civil
works projects that are essential for national defense:
In the
event of a declaration of war or a declaration by the President of a national
emergency in accordance with the National Emergencies Act that requires or may
require use of the Armed Forces, the Secretary, without regard to any other
provision of law, may (1) terminate or defer the construction, operation,
maintenance, or repair of any Department of the Army civil works project that
he deems not essential to the national defense, and (2) apply the resources of
the Department of the Army’s civil works program, including funds, personnel,
and equipment, to construct or assist in the construction, operation,
maintenance, and repair of authorized civil works, military construction, and
civil defense projects that are essential to the national defense.
33 U.S.C. 2293.
The question that remains in the application of these
statutes is whether the border wall is for the use of the armed forces, or is
essential for national defense.
These are questions that are likely to be addressed through
litigation should Trump invoke emergency powers to fund the building of the
wall. One hurdle to those who may
challenge Trump’s actions is whether a federal court will even intervene to
decide the issue.
There are times when a court has jurisdiction over a case,
but nonetheless decides that it is not appropriate to issue an opinion. This is called the doctrine of
justiciability. One such circumstance
where a court may find a case non-justiciable is the political question
doctrine.
The political question doctrine springs from the idea that
courts may decide issues of law, but are not an appropriate forum for political
issues. The courts may find an issue
non-justiciable as a political question, for example, when a matter is
explicitly assigned to a particular branch of government through the
Constitution, The Constitution
explicitly grants Congress the power to declare war. As a result, courts are not likely to review
such a declaration of war.
The political question doctrine may be invoked where the
court could not resolve an issue without expressing a lack of respect for a
coordinate branch of government, where it is impossible for a court to devise a
manageable standard to resolve the issue, where the resolution of the issue
first requires a policy decision that is beyond the discretion of the court,
and whether there is a possibility of embarassment that varying policy
decisions would be made by different branches of government.
This is not to say that the courts will never question the
President’s use of an emergency power.
To the contrary, in 1952 the U.S. Supreme Court addressed President
Truman’s attempt to seize U.S. steel mills during a strike in order to provide
a steady supply of steel for military use during the prosecution of the Korean
War and found the action to be unconstitutional. Youngtown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952).
Concerning the merits of whether a national emergency
exists, a federal court is likely to find that issue to be a non-justiciable
political question. One main reason is
that Congress provided no criteria for determining when such an emergency
exists. In this circumstance, courts are
likely to be uncomfortable to define the criteria that creates an emergency
whole cloth, without further guidance from Congress. Indeed, the lack of a definition of criteria
could very well be intentional to allow the President flexibility in responding
to a complicated situation that may need immediate action.
On whether the actual exercise of the power invoked is
appropriate presents a different type of question. Under either statute, appropriated but
unspent construction funds cannot be reallocated for just any question. They must be appropriated for a project
necessary for national defense or for the use of the military.
The main intended purpose of the wall is to stem the entry
of aliens into the United States who lack legal authority to come in. That is an immigration issue. The President has mentioned the need to stem
the inflow of illegal drugs. That is a
criminal justice purpose. The President
has variously claimed that there is an imminent threat of the entry of known
terrorists. However, statistic undercut
this argument. Only a handful of known
terrorists have been apprehending in recent years attempting to cross the
southern border legally. Thus, whether
the wall is essential to national defense appears to be a question a court can
decide with clear standards and without causing undue embarrassment to the
coordinate branches of government.
Likewise, a court could easily determine which governmental
department will use the wall. The U.S.
military is prohibited from enforcing domestic criminal law. The military is not charged with enforcing
immigration law. That job falls to the
Department of Homeland Security and the Justice Department. Thus, again, the question may not be
considered a political one.
Trump is correct that the law is behind him if he were to
declare a national emergency concerning the inflow of undocumented aliens over
the southern border. But that does not
mean that the specific invocation of powers would be an easy question. To the contrary, the appropriation of funds
for a border wall by reallocating budgeted but unspent funds for construction
projects will likely spark complicated litigation.
By: William J. Kovatch, Jr.
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