Can Trump Declare a National Emergency to Build His Wall? The Answer Is a Little More Complicated than Trump Would Like You to Believe.

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.

President Trump May Have Done DACA Recipients a Favor

It may not look like it now, but by announcing an end to the Deferred Action for Childhood Arrivals program, also known as DACA, president Trump may actually have done its recipients a favor. 

DACA was a popular program, with many people denouncing the president for announcing his intentions to end it. DACA allowed young people, who were not born in the United States but brought here illegally by their parents, to come out of the shadows and become productive members of society without fear of deportation. 

But relying on the continuation of DACA was bad policy. 

First, DACA was of questionable constitutionality at best. DACA was not created or even authorized by legislation. Instead, President Obama took a small piece of executive authority meant to address situations where the application of immigration law was harsh on an ad hoc basis, and turned it into a huge program. DACA is based on presidential authority to grant deferred action. This is nothing more than a promise not to seek the removal of a person who is otherwise in violation of immigration law. It is not directly authorized by Congress. Rather, it stems from the theory that the person who is enforcing the law has the discretion to choose not to come down with the full force of the law when there is a violation. Think of a police officer who witnesses a minor crime, but chooses not to arrest a person. 

The problem is that by taking this small piece of executive discretion and creating a full program out of it, affecting hundreds of thousands of people, President Obama infringed on the role of the legislative branch. That is, he essentially created law without Congress passing legislation. This can be seen as a violation of separation of powers. 

Several states saw it that way. Citing the extra expenditures the states believed they were incurring on people who were present in the country illegally, these states threatened to sue the federal government to end DACA. These states had been successful in shutting down a similar program that granted deferred action to foreign born parents of U.S. citizens and permanent residents by filing suit in the Fifth Circuit. If the states had filed a lawsuit over DACA, there was a real danger that the program could have been ended by the courts and declared unconstitutional. 

Second, DACA was a very weak solution to the problem.  DACA did not grant the young people who applied for it a legal status. That is, the program did not give the recipients a legal right to stay in the United States. It only gave the recipients a promise not to seek their removal. As a creature of executive discretion, this meant that the promise could be broken by the same executive who granted it. DACA did not lead to permanent residency. It did not lead to citizenship. All DACA did was to keep the young people who applied for it in a holding pattern. Going back to the separation of powers, this is because the president does not have the authority to create legal status, only to ignore the consequences when a person has violated the law. 

Third, the continuation of DACA permitted Congress to remain lazy. While DACA was in place, the young people brought to the country illegally but raised as Americans were not going to be deported. They were given legal authority to work and pay taxes. Even if there was no path to citizenship, there was no immediate pressure on Congress. Why, then, should Congress act?  Just pretend that this non-solution was working and let things continue as is.

Ending DACA is now forcing the issue with Congress. If Congress believes these young people are deserving of relief, Congress must now pass real legislation to protect them. Presumably, this legislation will include a true legal status instead of a mere promise not to deport. Perhaps Congress will even create a method for those who merit it to earn true permanent residency and eventual citizenship. Then, these young people who were brought up to be Americans will truly become Americans. 

Finally, DACA has made these young people more sympathetic. It is easy to say enforcement only and illegals deserve to be sent back, when you haven't met a hard working and moral undocumented individual. But DACA allowed these young people to work openly. It allowed them to win the respect of professors, fellow students, bosses and co-workers alike. When you met a person just making an honest living because of DACA, it was hard not to like them. 

And that sympathy will turn into political pressure. People don't want to see their neighbors, co-workers, friends deported. Businesses, including industrial Giants, will not want to see valued employees suddenly unable to work. Congress will be under pressure to create a real legislative fix. 

The termination of DACA may yet result in a better future for young people brought to this country illegally by their parents. If Congress acts, it could result in a more secure legal status and a path to citizenship. If Congress doesn't act, it will give the American public yet one more thing to add to the list of congressional failures and reasons to vote members out of office. 

William J. Kovatch, Jr. 

The End of DACA; Forcing Congress to Act

DACA, Deferred Action for Childhood Arrivals, was a popular program. DACA was meant to help people who were brought to the United States as children, due to no choice of their own, who were raised as Americans, but who lacked legal immigrant status. 

Despite having been raised here, having gone to school here, and identifying the United States as their home, these children could not hold a job legally. Often, their ability to go to college was hampered by the lack of legal status. Despite being raised as Americans, they had to live in the shadows, avoiding government attention and working in the underground economy. 

DACA recipients were sympathetic. They were stuck in their situation due to now fault of their own. Many were highly talented and very intelligent. If allowed to live and work openly, DACA recipients had great potential. 

To address the situation in which these children found themselves, President Obama created DACA. But the program was imperfect as best, and unconstitutional at worst. 

DACA is an exercise of deferred action. Deferred action is not a legal status. It does not give a person the legal right to stay in the United States. It is really nothing more than a promise; a promise not to seek the removal of a person, even though that person is present in the United States illegally. 

If you search the U.S. Immigration and Nationality Act, you will find that there is no statute that defines deferred action. There is no direct legislative authority for it. All there is in the statute is a reference that those who have received deferred action are eligible to apply for a legal right to work in the United States. 

At best, then, deferred action is indirectly authorized by law. But nothing in the law establishes it parameters. Nothing establishes to whom deferred action may be applied, or under what circumstances. 

Prior to DACA, deferred action was used mostly as an ad hoc fix when immigration law was imperfect. In many cases, deferred action was applied on a case by case basis, for humanitarian purposes when immigration law had harsh results. On occasion, deferred action was applied on a larger scale but on a temporary basis when an immigration program came to an end.  Special protections were granted by law to Liberians in the United States, for example, during the twenty year civil war in their country. When those legal protections expired, President Bush applied deferred action for one year to permit Liberians who had lived in the United States for a long time to adjust to their new situation. 

But before DACA, deferred action had never been used to create a program of immigration relief on such a scale. Indeed, the argument is that President Obama overstepped his constitutional authority as chief executive by creating a program that was legislative in nature. In this case, the president had no direct authority from Congress on creating such a program. No criteria was set by Congress on who would qualify for the program. No parameters were established on how long the program would last. President Obama created DACA whole cloth, establishing his own set of criteria for eligibility and his own judgment with respect to the length of the grant of relief.

To be clear, from the moment President Obama announced the creation of DACA, there were serious questions concerning whether he had violated the separation of powers provisions of the Constitution. The constitutionality of DACA was further called into question when the President created similar programs, one aimed at granting deferred action to undocumented parents of U.S. citizens or permanent residents, and one that was an expansion of DACA, which were defeated in federal courts in the waining years of the Administration. 

Why then, did President Obama use such an imperfect tool to grant such relief?  After all, it was temporary. It granted no legal status. It gave no path to citizenship. It was nothing more than a promise that any succeeding administration could break. It was arguably unconstitutional. 

The answer lie in congressional inaction. Legislation had been pending since 2001 to address the situation of children who had been brought to the United States by their parents illegally. It was called the Development, Relief and Education for Alien Minors Act, or the DREAM Act. Despite originally having Republican support, the DREAM Act died in May of 2011.  When the DREAM Act failed to pass Congress, President Obama forced the issue by creating a program where this who would have received relief through the legislation would be given deferred action. 

President Trump, who publicly expressed support for DACA recipients on numerous occasions, now seems to be on the verge of ending the program. He is doing so despite pleadings by Republican lawmakers, such as Paul Ryan, to give Congress the chance to pass legislation to address the problem. In doing so, he has raised the ire of many in the public who find DACA recipients sympathetic. 

The question now is whether President Trump's actions will finally force Congress to enact a legal solution to the problem, or whether DACA recipients will simply be forced to return to the shadows to hide from being deported from the only home they've known. 

William J. Kovatch, Jr.