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Declare National Border Emergency, Kill Two Birds with One Stone
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.
33 U.S. Code § 2293 – Reprogramming during national emergencies
(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.
(Pub. L. 99–662, title IX, § 923, Nov. 17, 1986, 100 Stat. 4194.)
10 U.S. Code § 2808 – Construction authority in the event of a declaration of war or national emergency
(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.
(c) The authority described in subsection (a) shall terminate with respect to any war or national emergency at the end of the war or national emergency.
(Added Pub. L. 97–214, § 2(a), July 12, 1982, 96 Stat. 157; amended Pub. L. 115–91, div. B, title XXVIII, § 2801(a)(6), Dec. 12, 2017, 131 Stat. 1841.)
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.
Published in Politics
Mrs. F said Trump knows a whole lot more about the law than she thought. I said Trump knows how to ask the right people the right questions. That I’ll believe. Which is it ?
Embrace the power of AND. Or perhaps THEREFORE.
[Trump knows how to ask the right people the right questions.]
THEREFORE
[Trump knows a whole lot more about the law than she thought.]
Sometimes I think it takes a lot of savvy to be a successful NY builder.
I wouldn’t construct a cunning plan that assumes the 5th Circuit is amenable to the President.
If only we could poll the judges first, like the left does. Can’t poll a principled judge. No need really to poll an unprincipled, immoral, regressive judge.However, they signal their intent.
During WWll a whole lot of things were done in the name of a national emergency. In the Pittsburgh area, half of the town of Homestead was torn down to add on to the steel mill there. People were moved out in the dead of night no questions asked.
Excellent post, Clifford! You’ve laid it out very well. I’m still skeptical about getting around the politics, but if it plays out as you say, I’m ready to say, “go for it!”
Excellent read. I would like to know more about the national emergency stuff, when it can be called, and when it can’t. It seems like a blank check to do anything. In this case, it is something many of us want, but that’s a sword that cuts both ways.
If the constitutional order still matters to you (it certainly does to me), Yuval Levin states the obvious (emphasis mine);
But the rest of us would have to look at the political situation, which presents a fairly straightforward set of facts: The president has asked Congress to appropriate $5 billion for his administration to build a border wall; the Congress has considered his request and declined to appropriate the money; and the president now says he will spend the money anyway. That is not within his power.
With the Obama Libya crusade still not a too distant memory: Are you kidding? For many of the same members of congress to speak up now about restraints on the executive after such a grand silence for the light working liar back then would require epic proportions of intellectual dishonesty and inconsistency…oh, wait…never mind.
Did you think what Obama did regarding Libya or DACA/DAPA to be wrong?
If so, how can you justify Trump doing this?
The law is quite clear: if the President declares a state of emergency, he can use money destined for other military purposes to build the wall. You can justify Trump “doing this” if you believe a state of emergency exists on the southern border.
I think this would be a fairly egregious abuse of authority. Finding a patina of legality in the statutes, or in traditions and customs, is standard operating procedure for authoritarians throughout history. It’s what they basically always do and no tool is more handy than the declaration of emergency. There is no reasonable definition of national emergency that would include the border situation as it is now. This would be a naked power grab.
Preserving the structure of the government, checks and balances, the rule of law, is the most important thing conservatives can do. It is far more important than just about any particular policy issue.
Not that it matters, as I’m just one guy, but if the president does this, it will be his crossing of the Rubicon for me. I don’t care how great his policies are, if he is not willing to submit to the law, to the Constitutional structure, he must not be re-elected.
Is it reasonable to call hundreds of thousands of un-vetted people crossing our borders an emergency? Is 50,000 people dying from drug overdoses from drugs that exist within our borders in part because our border isn’t being protected an emergency?
The post above clearly defines how Trump would be completely within his constitutional ability to do this. There is no Rubicon here unless you just can’t stand the man. It is a worthwhile discussion at the very worst. It may not be the most prudent course but calling this egregious is just silly.
It might be legal, but I think such a declaration would find enough members of Congress to rescind that authority. Politically it is a loser of an idea and Trump is good at choosing things with popular support.
Practically, is 180 days sufficient to accomplish anything? That 180 days has to include all the legal wrangling and the logistics of building 1500 miles of barrier. It is do-able on a good day, but not when there is active resistance in the system.
That simply is not true. Whether you agree or not, Congress has decided border enforcement is a law enforcement rather than national security issue. The President cannot unilaterally change that.
I’d like Epstein and Yoo to hold forth on this. I can’t make sense of the referenced statutes. If there is authority to do so we should. There is an emergency and as long as this, along with abortion, is what Democrats care about we have to deal with it. There are well funded even larger groups forming in Honduras right now. Those who think these assaults on our border will go away, or that the Democrats will just cave, that it doesn’t really matter that much or that this sets a precedent Democrats will use in the future, simply haven’t been paying attention.
No, because the vast majority of them are peaceful. That’s not to say it isn’t a problem that must be addressed, that’s not even to say the wall is a bad idea. It’s just to say that it isn’t an emergency.
No, because many things cause the deaths of huge numbers of our citizens, and if that’s all that is required for the President to declare an emergency, the power of the presidency would be expanded far beyond the intended scope by any reasonable interpretation. Also, these drug overdoses are, as you say, only partly related to the border issue. So if that is the basis for the president’s action, his powers are that much more expanded – the emergency doesn’t even have to be directly tied to the power he’s seeking to gain.
No, it lays out a plausible argument. But there are plausible legal arguments for all kinds of things that would undermine the structure of the government. There are plausible legal arguments for gun bans, for reparations, and a whole litany of other liberal causes.
My argument has noting to do with Trump, the man. I would say the same about any president who threatened to do this.
There’s no 180 day limit to a national emergency. The 180-day limit is on ceasing the spending upon ending the emergency.
Excuse me. No. This needs to be corrected.
Pershing was not sent to the border “to deal with the precursors of the cartels.”
He was sent to head a punitive expedition against Poncho Villa after Villa attacked Columbus, New Mexico. All this took place during the Mexican Revolution.
But no, it is historically illiteracy to say that Pershing was sent “to deal with the precursors of the cartels.” That is just nonsense.
If he used emergency authorities would he have to follow the burdensome government contracting and purchasing restrictions? If not a lot could be done in 180 days. Moreover, if the assaults are still being organized in Central America could the authorities not be extended? Of course in the mean time the government would be reopened and bills to get it right could become the focus of the debate. Does obstructing border security work for the Democrats in the short and medium term? GOP politics, PR and policy should all follow the same objective–reestablish security of our borders, the integrity of our immigration laws and the rule of law.
There is a lot to what you say. But it all comes back to the rule of law. If the federal government was deliberately created to be slow and difficult to move, then what Trump would have to contemplate – that is, arguing an emergency that really isn’t an emergency in order to do what it is he wants to do – then he’s wrong to do it, and it would be just as wrong for congress and the courts, and the people to allow him to do it.
But in aggregate, the government is dysfunctional. The Treasury is printing money rather than coining it and we can never go back. The federal government mandates the states to do things that are outside federal purview and only touch-stoned by the commerce clause or the public good phrasing – which allows the federal legislature to do anything at all. The abortion issue was never decided unanimously by the legislature or the states, but by a cover of constitutionality that is suspect as best. The states have acquiesced to all this despite their Constitutional freedom within the 10th Amendment.
And in response, they are attempting to rule by controlling the judiciary and ruling by judicial fiat, which is the constitutionally-wrong approach, and by commercial and interstate coercion, such as boycotting other states that don’t abide by first state’s demands over unisex community bathrooms in public places. And at the same time some states are in open rebellion – either by allowing rebellious cities, or out-rightly themselves – against federal laws (marijuana, sanctuary status, etc.) At the same time it really IS the president’s obligation to enforce the border. Yet the president can do nothing that he is constitutionally required to do because of the so-called purse strings.
And what is more, the laws that many states rebel against are on the books. They are not archaic appendages. They up until recently were considered right by both sides (openly at least) and there was at least a good show at enforcement.
What we have is a completely chaotic government that as of now neither follows the constitution, nor maintains an agreed upon peace within its divisions, and uses extra- and unconstitutional means to accomplish its goals. At this point, it seems to me, the government cannot be held to any single standard of constitutional law, because it has ignored it for so long that to enforce one would require, if rule of law means anything at all, all constitutional law and practice to be reinstituted.
If Trump doesn’t declare a state of emergency because of these constitutional – or rather unconstitutional – conflicts, then how will anything constitutionally valid ever get done? How else can the president protect the border in an effort to promote the common welfare? What might your solution be?
Cliff,
You may have hit on something here. The incredibly dangerous drug criminal gangs and their activities across the border are something that we should see as simply intolerable. This isn’t domestic policy anymore. This is a direct encroachment by a foreign force upon our border.
We announce to Mexico that either they secure their side of the border or we will cross the border and do it for them.
Regards,
Jim
I just heard Epstein’s podcast on the subject. He says Presidents have such authorities in emergencies but he doesn’t think this is an emergency because it’s been a festering wound for over a decade and hasn’t been dealt with. It’s not acute. However, he didn’t mention the organized and well funded invasions, another of which is currently being organized in Honduras. We wouldn’t have to build all the wall but the President must begin, militarize the border to let would be invaders know that their trip is likely to fail and subsequent organizers and to find it difficult to raise funds. Of course, if the Democrats succeed in their obstructionist policies, the mob will acquire momentum. This is an emergency because mobs are taking advantage of our loss of control over our border.
I Walton,
Why rely on the concept of an “emergency”. When the country is under siege by a foreign force the President isn’t just authorized to act, he is required to act. The Dems could use the War Powers Act to try to stop him. I wonder what Mr. Yoo has to say about that?
Regards,
Jim
First, I reject the premise that the government is dysfunctional. Planes aren’t falling out of the sky, elections are held as scheduled, wheel barrows full of dollars are not required to buy groceries,…
The President cannot secure the border if the Congress decides he cannot spend any money to do so. Fortunately, that is not the situation we are presented with; he is simply being told he cannot build a wall along the border.
I think I see the problem…
That’s the problem I have with it, too. I’m not convinced that this is now an emergency. Especially when he said, I think a year in to his presidency, that illegal border crossings were down. I’m not sure how the situation has changed to now call it an emergency.
I thought he was being told they just weren’t going to pay for it.
That is a distinction without a difference.