Talk of President Trump building the border wall under a declaration of national emergency seemed fanciful, unanchored in law. While major media including Fox News have done no more than wave the term around, a lawyer and talk show host for Urban Family Talk actually laid out the law. There is a case for building under a national emergency, and if the President takes this route, there is also an opportunity to force the federal judiciary back under the Constitution.
The case for “wall” construction under national emergency powers:
We should always be skeptical of phrases like “national emergency” or “treason” being waved around. They generate great dopamine hits and generally distract and discredit real criticism or policy. However, in this instance, there is a credible case to be made, and Abraham Hamilton III has made it for his audience. Listen to the last 10 minutes of this Hamilton Corner episode.
In this podcast, Hamilton makes the case briefly, which I will flesh out with the relevant links and statutory language. He cites to the law, briefly explains how it would work, and suggests the President has set conditions required by the relevant statutes to have a solid case. Hamilton also deals with the basic question of the term “national emergency.”
“National emergency” is not what it sounds like; it is not necessarily a description of some objective, quantifiable “emergency” on a “national” scale. Instead, “national emergency” is a legal term of art, a sort of “open sesame.” Invoking “national emergency” under various federal statutes unlocks resources and courses of action, authorized in advance by statute.
Hamilton pointed out that President Trump renewed a declaration of national emergency that was first declared by President Carter. President Trump’s renewal was the 28th renewal since Carter declared a national emergency in response to the Khomenists seizing our embassy and personnel (an act of war). Hamilton explained that this perennially renewed declaration is the instrument that enables application of sanctions.
Think for a moment about even the past year’s news. How often did you hear that state officials were requesting, and the President declaring, a “national emergency?” This is the “open sesame” unlocking federal help to address natural disasters that overwhelm local and state resources.
It turns out that the same sort of policy tool just happens to be sitting on the shelf, ready for the President to activate its power with the magic words “national emergency.” As Hamilton explained, there are two relevant sections in the U.S. Code, the organized system of all federal laws. These were passed back in the Cold War to authorize reallocation of unobligated Department of Defense funds domestically in case of a declared “national emergency.”
The relevant law is found at 33 U.S. Code § 2293, and 10 U.S. Code § 2808. Hamilton summarized that these sections permit the Department of Defense to reallocate funds not already obligated (think checks in the mail). Military constructions funds are named as a source that could be redirected under the correct conditions, particularly to construct projects essential to national defense.
The statutory language attempts to keep Presidents from misusing this tool by requiring the presence and use of military personnel. Now does the President’s move to send troops to the border make even more sense? He has created a predicate condition to invoke “national emergency,” thereby activating statutory authority long ago granted by Congress.
(a) Termination or deferment of civil works projects; application of resources to national defense projects
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 [50 U.S.C. 1601 et seq.] 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.
The Secretary shall immediately notify the appropriate committees of Congress of any actions taken pursuant to the authorities provided by this section, and cease to exercise such authorities not later than 180 calendar days after the termination of the state of war or national emergency, whichever occurs later.
(a) 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 (50 U.S.C. 1601 et seq.) 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.
(b) When a decision is made to undertake military construction projects authorized by this section, the Secretary of Defense shall notify, in an electronic medium pursuant to section 480 of this title, the appropriate committees of Congress of the decision and of the estimated cost of the construction projects, including the cost of any real estate action pertaining to those construction projects.
Look at the dates of the underlying laws: 1982, 1986. These were crafted in anticipation of a crisis in the homeland while our focus was on the Fulda Gap and the plains of Central Europe. Yet, here we are.
Recall that this is hardly the first time federal troops have been sent to deal with a national security crisis on the U.S.-Mexico border. General “Black Jack” Pershing was sent at the beginning of the 20th Century to deal with the precursors of the cartels. Any Army or Marine officer can tell you the importance of effective physical barriers, as an essential component, of an effective defense of any piece of ground.
The basic question of whether the current border and internal immigration control situation is a national emergency is a political question, not the legitimate subject of judicial scrutiny. Expect a 9th Circuit district judge to assert otherwise, but the United States Supreme Court will almost certainly slap down the 9th Circuit if it upholds this usurpation of Article I and Article II authority.
The opportunity to force federal district judges back into their own districts:
The day President Trump declares a national emergency at the border, expect qualified plaintiffs to go into a Ninth Circuit federal district court, that has territorial jurisdiction at the border. Knowing this will happen, pro-border-control parties in Texas must have their briefs and pleadings written and ready to file in a friendly federal district court under the Fifth Circuit Court of Appeals. This second filing should address both the legality and constitutionality of the President’s action and the lawlessness of the Ninth Circuit district court in daring to usurp the jurisdiction of a co-equal district court.
Done right, this is the opportunity to force the Supreme Court to confront the issue of nationwide injunctions, that has already been addressed by Justice Thomas in his concurring opinion in Trump v. Hawaii. The idea that a district court judge would dare to claim to bind the whole nation, and so all his judicial peers, by his decision flies directly in the face of common sense, legal tradition, and, arguably, the Constitution.
While the Supreme Court has not yet seen the need to rule on the issue, it would be forced to if the Fifth Circuit asserted its rights over its geographic area and rejected claims by the Ninth Circuit to have any binding authority in the same space. As to the other issues involved, other members with relevant legal experience are invited to discuss the Supreme Court precedents that seem most likely to apply, and the best plaintiffs based on those decisions.