Does the president have the legal authority to declare a crisis and build a border wall?
Unquestionably, lawyers and law professors can argue on either side of this issue and make a convincing case. But here are some of the arguments Trump’s side will probably use if it comes down to that:
It’s likely that President Trump is looking at 10 U.S.C. § 284 for authority to build the wall. That allows the Department of Defense to support other agencies of the federal government to counter drug activity and transnational organized crime, using such means as “Construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”
Another law, 10 U.S.C. § 2808, allows the president to declare a national emergency and direct the U.S. military to undertake military construction projects using appropriated funds for military construction, including family housing, that have not already been obligated.
Ackerman [a Yale law prof who wrote an op-ed in the NY Times saying that Trump lacks the authority] compares declaring an emergency to build a border wall to President Harry Truman’s attempt to nationalize the steel industry in 1952. That effort was struck down by the Supreme Court. This comparison is ridiculous, because that case involved the president seizing control of private property (i.e. privately owned steel mills).
In contrast, the government has already purchased much of the land needed for the border wall.
Much more at the link, including:
My research did not isolate a particular legal standard for “a national emergency,” so it’s possible Trump’s critics could challenge his action in the courts as insufficient on that basis. There’s plenty of violence taking place on both sides of the border in connection with drug smuggling that Trump could cite to invoke the same justification used by Clinton and Bush.
If Trump is wrong, Congress, as Ackerman noted, would have “the right to repudiate it immediately.” Thus, the question of whether the situation at the border is an emergency is probably more of a political issue for the first two branches of government than it is a legal issue for the third branch.
Whether or not it should be a legal issue for the third branch, it probably will be, if Trump ends up deciding that declaring a national emergency is the way to go for building the wall.
Why is this the hill the Democrats have chosen to die on? It’s clear why it’s so important to Trump—it’s the linchpin of his campaign promises and he feels he must deliver. For the Democrats, it’s really a reverse of that same principle. Their biggest goal is to remove Trump now or at the very least to prevent his re-election. In fact, they might be more comfortable with the second than the first, because removing a president means they can’t campaign against him in 2020, and they see anti-Trumpism as a big big motivator for voting Democratic.
But their opposition to the wall is multiply-determined. They think it makes them look compassionate, which will appeal to their constituents, who can then bask in the glow of their own compassion when they vote for Democrats. In addition, the Party sees illegal immigrants as ultimately leading to more Democratic voters.
Who will win the wall funding standoff? Michael Walsh believes it will be Trump:
…[T]he furloughed public servants are merely suffering delayed paychecks thanks to the Democrats’ refusal to accept the results of the 2016 election, and while the public has not been as deliberately inconvenienced as it was during the dog-in-the-manger Obama shutdown, its effects are nevertheless being felt at such points of intersection as the national parks. Still, life has gone on otherwise pretty much as before — and the longer the shutdown rolls on, the more easily the way we were can be forgotten.
So the longer Donald Trump wrangles with his two superannuated cartoon antagonists, Nancy Pelosi and Chuck Schumer, the stronger the president’s position becomes. This despite the Democrat Media’s insistence that the shutdown is a terrible thing, costing the lives of (as usual) untold women, children, and minorities.
He makes a certain point, which is that so far the shutdown has mostly been a non-event, hyped by the press of course, but not affecting most people at all. It will get more visible as time goes on, though, and the government workers start not receiving paychecks.
However, there is a certain “boy who cried wolf” perception that may be starting to operate, which is that people become somewhat bored with these recurrent shutdowns because they seem like old stories. We’ve passed this way too many times before, and the empty theater aspects of the process become more and more apparent.
How many people see the shutdown that way? I don’t know, but I would guess that if I were to poll most of my friends on the subject—which I am not planning to do—the majority of them would start saying how awful it is and how the Republicans are at fault. But whether they are representative of the country at large I do not know.
So far, however, polls indicate that they are:
Nearly half of voters, 47 percent, say Trump is mostly to blame for the shutdown, the poll shows, while another 5 percent point the finger at congressional Republicans. But just a third, 33 percent, blame Democrats in Congress.
The article doesn’t have a link to the poll, so I wasn’t able to see how the questions were phrased, which tends to be highly important in interpreting the meaning of polls. It was also conducted prior to the president’s speech on Tuesday, which makes it even less meaningful than usual.
In a quick search I was unable to find any polls taken after Tuesday. But it’s only over time that this story will play out, and Trump’s only just begun to fight.
We need two questions:
1) When there was a shutdown under Pres. Obama, did you think it mostly the fault of the President or of Congress?
2) In this shutdown, do you think it is mostly the fault of Pres. Trump, or of Congress?
Most Dems will blame: in case 1-Congress, in case 2-President.
But they won’t think this is inconsistent, because they think the Reps are “evil” in both cases.
Because they suffer from Dem Derangement Syndrome.
It is evident that the Dems and Progs want open borders because the far greater majority of the immigrants vote Dem when they get to our pols.
Don’t you think they also voted liberal in their home countries, thus turning them into the s…holes that they now wish to leave because of what those countries have now become?
The time to take your licks, disappoint your core base … create a gratuitous stink to further-excite an already over-excited opponent … is immediately AFTER an election.
The time to be the Conquoring General, a Henry Clay … to pull an ace out of your sleeve and a rabbit out of a hat … is NOT after an election, but in the lead-up … to the election that counts most. 😉
The time to see something on the wall, is summer of ’20.
On Tuesday, Jonathan Turley also weight in on this with an esay poste at The Hill
https://thehill.com/opinion/judiciary/424314-yes-trump-has-authority-to-declare-national-emergency-for-border-wall
I read that Rubio ask the important question: What will your response be when President Harris declares climate change a national emergency?
Well??
LYNN HARGROVE:
The answer is rather simple.
Any president can declare anything a national emergency. That’s just words in a speech.
The real question is what said president proposes to do about it. Is the proposed action legal and constitutional for a president, or not? It’s not the declaration of crisis that’s the problem. Notice the title of the post says “to declare a crisis and build a border wall.” The real issue to be determined would be whether he can build a wall under those circumstances, which depends on how he does it—that is, what law or power of the president governs in such a case, and where the funds will come from. Declaring a crisis does not give any president the authority to do virtually anything and everything.
Neo,
I think Trump does have a specific mechanism by which the wall will be built; that he had this all researched & lined-out before he declared his candidacy … and that (therefore) it is not linked closely with any crisis declaration or means-choice.
He has various powers … but the ‘action’ right now is to inflame the Democrats with visions of him abusing power, and them hanging him for it. Remember, he is an accomplished dramatist.
You can read the details of that poll discussed in the Politico piece here. The question about the blame for the shutdown is this:
POL18: Who would you say is mostly to blame for the government shutdown?
It was preceded by these two:
POL16: How familiar would you say you are with the situation in Washington D.C. that caused the government shutdown?
POL17: How well would you say you understand the situation in Washington D.C. that caused the government shutdown?
You can read the details on respondent demographics here.
“Does the president have the legal authority to declare a crisis…?
Crisis?
Declare?
One would have thought that the Democrats and their apparatchiks in the media declared a crisis the moment Trump was elected.
(And have been doing so every day since….)
When people or groups fund caravans to overrun our borders we need the walls pronto. We needed the wall before but the crisis is here every so often. Drugs, killers, rapists, freeloaders, and now caravans. We need the wall now.
If Pres. Trump correctly declares America’s lack of control of our southern border to have become a national emergency and directs the US military to construct the wall/barrier, is there any doubt that the lawsuits will erupt?
If one or more of those lawsuits reach the Supreme Court and the SC rules that Trump has exceeded his authority, what does Trump do?
Is not such a ruling a declaration that the Constitution is a death pact? That if the majority’s actions are clearly suicidal, the minority must submit to that now shared fate?
If Trump accepts that ruling is he not also acquiescing to the destruction of America in the not-too-distant future?
And thus derelict in his duty?
In the face of such a ruling, would Trump be justified in declaring martial law?
If Trump balks at such a step and, as a result the Left gains permanent political dominance, upon what basis is there to presume that liberty will survive?
If Trump caves, he is a lame duck.
The Congress may try to work out the original deal before the 9th Circuit killed it by ruling that DACA cannot be deported. That removed any incentive for Democrats to negotiate. They assume the courts will legislate for them. The 9th Circuit ruling went to the USSC but it was 4 to 4. I assume it will go back and the USSC will now rule 5 to 4 and then we may get a meal.
I see no solution short of that.
A deal. A meal would also be nice.
10 USC §284 gives the President the explicit authority to order the DoD build the Wall, without declaring a national emergency. Invoke and let the Dems die on their hill!