According to President Trump, a border wall is necessary because the United States is suffering “an invasion of drugs, invasion of gangs, invasion of people, and it’s unacceptable.” He has declared a “state of emergency” and intends to pull funding from other areas of government to fund his controversial border wall. His actions are clearly unconstitutional.
In 1952, the United States Supreme Court addressed this very issue. In Youngstown Sheet and Tube Co. v. Sawyer (1952), the “Steel Seizure Case,” the steel workers union staged a strike during the Korean War, threatening the supply of steel needed to produce American weapons. President Harry Truman issued an executive order seizing the steel mills to keep them operating, so as not to harm the war effort. The Supreme Court, in holding that Truman’s act was unconstitutional, was clear when it held that “[t]he Constitution limits [the president’s] functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.” Justice Robert Jackson, in a concurring opinion, stated that there is a three “zone” framework to gauge the president’s legitimacy of power. In the first zone, where the president’s authority is at a minimum, the president acts with congressional approval. In the second zone, which Jackson called the “zone of twilight,” the president acts in a vacuum, without Congress rendering any opinion, and with judges assessing whether that decision was based on the Constitution. In the third zone, when those powers are at their lowest ebb, the president’s action are “incompatible with the expressed or implied will of Congress. Here, Trump’s acts fall into that third zone as Congress considered and rejected the president’s request for wall funding and rejected it. Congress has not authorized a wall, nor appropriated the extra money that the president now seeks to divert for it.
Trump Has No Authority Under the National Emergencies Act “NEA”: And even ignoring the US Constitution (which we simply cannot do), while Trump has involved his authority under the 1976 NEA, legislation where Congress instituted a mechanism to give presidents the discretion to unilaterally declare emergencies, he loses under that law as well. The NEA, passed during Nixon’s tenure to restrict the use of presidential power, was never intended to provide future presidents the power to implement projects unilaterally whenever they are frustrated by the inability to get congressional approval. Trump’s actions were in defiance of Congress. Simply, he asked for funding for a border wall. Congress rejected that proposal. He responded by calling “emergency.”
If that were not enough, the NEA can be used only if the ’emergency’ involves using the military: Some have argued that, the NEA is activated only by an emergency that “requires the use of the armed forces,” at which point only construction that is “necessary to support such use of the armed forces” can occur. Others add that the wall simply doesn’t match the statute’s detailed definitions of the kind of projects it allows.
Let The Litigation Begin: Within hours of declaring a national emergency, the law suits started coming in. They are all private lawsuits fighting the eminent domain the government will presumably use to acquire needed land along the border. Those lawsuits will take months and President Trump should be losing his gamble before the Supreme Court just before the next election, or even sooner.
Congress Can Stop Trump in his Tracks: The president may get lucky; Congress could use the NEA’s procedure to rescind the president’s declaration. It might even revisit the NEA itself. That, however, would require a veto-proof majority. Certainly several members of Congress are on record denouncing Trump’s move, but not enough at the moment to veto his overreaching.