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The president has declared a national emergency
and is using that as justification to build his wall.
Can he do that?
(orchestral musical flourish)
In ancient Rome, the dictator was a temporary position
given to the head of state in times of emergency.
So giving emergency power to the president
is not a new idea, but there's nothing
like that in the Constitution.
The Constitution makes no provision for a national emergency
and does not recognize anything like emergency powers.
But some argue that the president
has been delegated those powers by Congress.
So today, we're gonna talk
about President Trump's emergency declaration.
Number one, I wanna talk about what emergency powers
the president does actually have.
Number two, I wanna talk about whether there is,
in fact, an emergency that allows
the president to invoke those powers.
Number three, I wanna talk about what powers
Congress has and which it has bestowed on the president,
and number four, I wanna talk about the possible outcomes
that may come as a result of this national emergency
declaration and what that means for future presidents.
In other words, are we going to see a lot
of new declarations of national emergencies over things
like the environment, gun control, or healthcare.
So let's talk about the first question.
What emergency powers does the president have, and can
the president act outside of those enumerated powers?
Well, with few exceptions, the president
can only act with Congressional authorization.
The president has broad executive and enforcement authority
to use his or her discretion to determine
how to enforce the law or how to otherwise manage
the resources of the executive branch,
but the president has virtually no authority
to pass laws or appropriate funds without Congress.
And in fact, in the famous case
of Youngstown Sheet and Tube Company v. Sawyer,
the Supreme Court ruled that President Harry Truman's
attempt to nationalize US steel mills during a strike
in the Korean war was in fact unconstitutional.
So as one Congressperson has said,
if Harry Truman couldn't nationalize the steel industry
during wartime, this president doesn't have the power
to declare an emergency and build
a multi-billion-dollar wall on the border.
Now, one of the first fundamental issues that is implicated
by this emergency declaration is the appropriations issue.
According to Article One of the Constitution,
only Congress can appropriate federal funds.
Article One, Section One of the US Constitution states
that all legislative powers herein are granted
and shall be vested in the Congress.
Article One, Section Eight states that Congress
has the exclusive spending power to, quote,
provide for the general welfare of the United States.
Lawsuits have already been filed stating
that President Trump has violated the United States
Constitution's separation of powers doctrine
by taking executive action to fund a border wall
without Congress actually appropriating the correct funding.
Those lawsuits have argued that the 2019 Appropriations Act
is an explicit denial of the president's
requested funds for the border wall.
Those lawsuits also argue that the president
has violated the separation of powers doctrine
by unilaterally diverting funds that Congress
has already appropriate for other things
that are not related to the border wall,
and Article One, Section Nine of the Constitution states
that no money shall be drawn from the treasury
but in consequence of appropriations made by law.
The lawsuits argue that Congress heard
the president's request and explicitly rejected the request
to appropriate funds to build any kind of border wall.
So the recent attorney's general lawsuit argues
that President Trump violated
the appropriations clause of the Constitution
by funding construction for a border wall with funds
that were not appropriated for that purpose.
But here, the Trump administration will counter
that Congress has, in fact, passed a law
that gives him authority to do this.
A number of laws do in fact authorize the president
to take certain actions by declaring a national emergency.
The primary law the president seems to be operating
under is the National Emergencies Act of 1976,
as amended in 1985, which governs
the president's declaration of a national emergency.
Now, under the NEA, the president must specifically state
the law under which he proposes to act,
and he still has to comply with the provisions of that law.
This is incredibly important, because the redesignated funds
must still comply with the original law
under which the funds were appropriated.
The first preliminary issue is can the president
even invoke the NEA in these circumstances?
The question is, is there an emergency, and it also depends
on what the definition of an emergency is.
The term emergency is not defined
in the National Emergencies Act, and this fact
cuts in a couple of different directions.
On the one hand, some argue
that this gives the president carte blanche
to declare anything an emergency, because the NEA
doesn't specify what constitutes an emergency.
But I think that misses the point.
One of the jobs of the courts
from time immemorial is to provide definitions
where a particular statute is silent or ambiguous.
In the case of federal laws, courts often look
to the intent of Congress to impute a definition
to an otherwise undefined term, and let's be clear,
there is no emergency as most people understand that word.
Merriam-Webster's defines emergency as a, quote,
unforeseen combination of circumstances
of the resulting state that calls for immediate action.
President Trump has said himself
that this was not strictly necessary.
He could have gone through regular channels,
but he wanted to do if faster.
- I wanna do it faster.
I could do the wall over a longer period of time.
I didn't need to do this.
But I'd rather do it much faster.
- And in the present day,
illegal immigration is at near historic lows.
The president may not be satisfied with those numbers,
but as most people understand
the lay definition of emergency,
it doesn't seem like there's any against that it fits.
It seems very likely that this
is not the kind of situation that Congress had in mind
when passing the 1976 National Emergencies Act.
In fact, that particular law was an attempt
to curtail presidential power
that had been exercised by the Nixon administration.
So it is possible that the court will defer to whatever
the president declares as a national emergency.
I don't think the courts that look at this will do so,
in part because of the political ramifications.
It might allow future presidents
to declare whatever they want as an emergency.
But that being said, it isn't uncommon
for courts to have to weigh in on the definitions
of terms in various laws, and if the court
uses a lay definition of emergency,
then it's likely that this particular situation
would not qualify, and that may end the analysis
of this particular legal question right there.
But let's assume for the sake of argument
that this does qualify as a national emergency,
or the court takes a deferential view that says
basically anything can be a national emergency.
Now that means that we have to look at the second part.
What laws are invoked in order to reappropriate the funds,
because, as I mentioned before,
the president still has to comply with the underlying laws
that passed the funds in the first place.
One of the laws the president is relying on
to see the lion's share of the billions of dollars
he's asking for border wall construction
deals with military construction.
Under this military construction law, 33 U.S.C. 2293,
the president may terminate or defer military construction
that he has deemed not essential to the National Defense,
and may apply those resources for a project
to construct another project which he considers essential.
But the reappropriated funds under this particular law
must still constitute military construction,
and given the fact that we are not at war with Mexico,
it makes it a hard sell to claim that a border wall
is a military construction project.
In addition, this particular construction project
does not require the armed forces to build,
and in fact, there's an argument to be made
that the military cannot be used to build
this particular project under the Posse Comitatus rule.
Posse Comitatus is a doctrine that is enshrined
in statutory law in the United States that says
you cannot use the military for domestic projects,
especially not enforcement.
You might recall that when President Trump sent troops
to the border to fight against an alleged caravan
of potential immigrants and refugees,
they weren't actually send to the border to fight
but really to only provide backup services
to the Department of Homeland Security.
That was largely because of the doctrine of Posse Comitatus,
which says that you cannot use armed forces domestically.
So even if the president is able to get over the hurdle
of declaring a national emergency, he's still going to have
a number of hurdles with respect to the underlying law
from which he is taking the appropriated funds.
Now, on the other hand, the government will probably argue
that the courts should give broad deference
to the president's determination that there is
a national emergency, and also broad deference
as to what constitutes military construction.
As the Commander-in-Chief of the armed forces,
we don't often want to be able to second-guess
the Commander-in-Chief's ability to declare
what is essential to the national defense and what isn't.
So if this case gets to the Supreme Court and isn't bounced
on some technicality, it's completely unclear
which way the Supreme Court might go on this.
There are long strings of cases that are deferential
to the president and the president's authority
to act where the Constitution allows it.
So this is certainly not a slam-dunk for either side,
and this is also one of those areas where the traditional
cleavages of liberal versus conservative justices
on the Supreme Court don't always make sense.
Sometimes, the conservative justices
vote to curtail executive power, and sometimes,
the more liberal members of the Supreme Court take the view
that the executive powers should be very expansive.
So when it comes to who might view this as an overreach
and who might view this as a perfectly reasonable thing
for a president to do, all bets are off.
I should note, however, that litigation over this
emergency declaration is going to have issues
with standing and ripeness.
This is always a perennial issue when you have
these kinds of acts and political questions,.
In order to file a lawsuit,
you have to have what's called standing,
which means that you have to be personally aggrieved
in order to file suit, and in terms of standing,
individual members of Congress do not have standing,
but sometimes Congress as a body does.
Sometimes affected states have standing;
sometimes they don't.
There's also the issue of ripeness.
Since only the declaration has been made and no action
has actually been taken, it's not clear
that this case is actually ripe for adjudication,
but the recent litigation in California which deals
with dozens of states, dozens of states' attorneys general,
and several farmers who are likely
to be affected by this emergency declaration
looks to solve some of those standing and ripeness issues,
but no matter what, this will have huge implications
for future presidential actions.
Those on both sides of the aisle are right to worry
about the president in this particular setting.
When the Senate passed the National Emergencies Act,
it stated in the notes of passage
that the NEA was designed to ensure
that the president's extraordinary emergency powers
would be utilized only when emergencies actually exist.
Under the National Emergencies Act, Congress has 18 days
to adopt a joint resolution to terminate the declaration,
but that joint resolution is subject to a presidential veto.
A recent Supreme Court authority has stated that
a presidential veto can only be overturned by a two-thirds
vote in both houses, and this is incredibly unlikely.
So that means that if the court upholds
the Trump administration's declaration of emergency here,
the likely outcome is that the next president,
and potentially the president after that,
is likely to be able to declare almost anything
a national emergency in that case as well,
and at least in my opinion, that seems
like exactly what the framers of the Constitution
tried to avoid when they gave
the exclusive right to pass laws and the exclusive right
to make appropriations only to Congress.
President Trump made a major mistake by saying
that he didn't need to issue the declaration of emergency
and could have used the regular legislative process.
He really could have benefited from Soledad O'Brien's
Skillshare class, Powerful Storytelling Today.
If he had taken a class
on crafting a great story and message,
his legal defense would be in much better shape.
He also could have benefited from Simon Sinek's class
on how to share ideas that inspire action,
because so far, the only action that President Trump
has inspired is a bunch of lawsuits.
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So, do you agree?
Leave your objections in the comments.
Check out my other real law reviews here
for more legal analysis, and until next time,
I'll see you in court.