[Hat tip: commenter “huxley.”]
Nancy Pelosi reacts:
Speaker Nancy Pelosi (D-Calif.) on Thursday issued a warning to Republicans poised to support President Trump’s decision to declare a national emergency at the southern border: the next Democratic president, she said, could do the same on guns.
“A Democratic president can declare emergencies, as well,” Pelosi told reporters in the Capitol. “So the precedent that the president is setting here is something that should be met with great unease and dismay by the Republicans.”
Oh, really?
First of all, a Democratic president certainly wouldn’t restrain him/herself from declaring a national emergency just because a Republican hadn’t done it yet.
Secondly, of course any president has the right to declare a national emergency, and many have done so already. The real questions are: (1) under what conditions can a president declare a national emergency; and (2) what is a president allowed to do when that emergency is declared?
So, let’s get some facts.
The power of a president to declare a national emergency is a statutory one, enacted in 1976 to supersede a previous hodge-podge. Such a declaration needs to be renewed annually to be in effect, and Congress can revoke it “with either a joint resolution and the President’s signature, or with a veto-proof majority vote.”
Prior to the passage of that National Emergencies Act:
…[P]residents [had] asserted the power to declare emergencies without limiting their scope or duration, without citing the relevant statutes, and without congressional oversight. The Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer limited what a president could do in such an emergency, but did not limit the emergency declaration power itself.
Since the signing of that bill, there have been 42 national emergencies declared; most of them limited trade in various ways in accord with another act of Congress.
Under what conditions can a national emergency be declared? It’s pretty broad:
The Act authorized the President to activate emergency provisions of law via an emergency declaration on the conditions that the President specifies the provisions so activated and notifies Congress.
There are certain exceptions, but they don’t apply to the current case (one, for example, is regulating transactions in foreign gold and silver}. But Pelosi’s rhetoric aside, there are also 136 enumerated and relatively specific powers granted, and you can find a list of them here (written in December of 2018):
Unknown to most Americans, a vast set of laws gives the president greatly enhanced powers during emergencies. President Donald Trump’s threats to bypass Congress and secure funding for a wall along the border with Mexico by declaring a national emergency are not just posturing. The Brennan Center, building on previous research, has identified 123 statutory powers that may become available to the president when de [sic] declares a national emergency, including two that might offer some legal cover for his wall-building ambitions (10 U.S.C. 2808 (a) and 33 U.S.C. 2293 on our list…).
Here is 10 U.S.C. 2808(a):
Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize Secretaries of the military departments to undertake military construction projects, that are necessary to support such use of the armed forces.
And the one I consider more relevant, 33 U.S.C. 2293:
Secretary of the Army may terminate or defer any Army civil works project and apply the resources, including funds, personnel, and equipment, of the Army’s civil works program to authorized civil works, military construction, and civil defense projects that are essential to the national defense, without regard to any other provision of law.
Looking at that, I think it’s relatively straightforward that the president has very broad powers to declare national emergencies and that what Trump proposes to do—if he uses the Army’s civil works program—might be fully legal under 33 U.S.C. 2293, if the argument is accepted that the wall is essential to the national defense or if it is found to be an “authorized civil work.” Naturally, there will be a legal challenge that the wall and the immigration situation is not the sort of immediate and threatening emergency that would justify such a declaration, and/or that it’s unnecessary for national defense and/or not an authorized civil work.
In addition, there’s the question of whether Trump can use the military to do this; here’s a discussion of that. Suffice to say the answer is “maybe,” and the issue is likely to be settled in court, as well.
And lastly, there is the question of obtaining the land for the wall through eminent domain (written January 7, 2019) [emphasis mine]:
The United States has a long tradition of authorizing the military to seize private land for a federal project…
…Congress has delegated the power to seize private property to many military branches, including the Army Corps of Engineers to construct military bases and the Department of Navy to acquire land for airfields and gunnery ranges…
If Congress passes a budget that includes Trump’s $5 billion in border wall funding, then technically it is possible that the Army Corps of Engineers could begin seizing land and constructing the wall…
One-third of the land is owned by the federal government, while the rest of the land is owned by states, private property owners or Native American tribes.
It occurs to me that the value of the bill that Trump signed today (in addition to its ending the shutdown issue for a while) is that it contains statutory authorization for the building of a wall, and therefore can help with the near-certain court fight over the eminent domain issue. Despite its restrictions and “poison pills,” its enactment means that Congress has authorized a wall and this may give the authority for the eminent domain taking.
The judiciary will be kept very very busy. For starters, I fully expect several circuit courts to enjoin part or all of Trump’s declaration, and then the Supreme Court may have to take up the overarching question of whether a circuit court can issue such an injuction for the entire country on matters of national importance. This is a question SCOTUS has ducked so far, but it may not be able to duck it for long.
The storm and drang around this, the hue and cry, are just beginning.
[NOTE: By the way, statements such as Pelosi’s, with its false equivalence, are wrong (although they are par for the course). As far as I can tell, and unlike building a public work for national defense—gun control is probably not something that can be fit into one of the presidential powers listed under the National Emergencies Act. In addition, if there’s not a controlling Congressional law authorizing the action, such as is in effect with bills authorizing the building of the border wall, that could be another problem for Pelosi’s plans.
Of course, where there’s a will, there may be a way. And in that sense—which may be the most practical sense of all—Pelosi is right. The National Emergencies Act, and its 136 provisions, can probably be effectively stretched by a president of either party, if conditions are right and especially if there is a simpatico SCOTUS majority in place:
In the past several decades, Congress has provided what the Constitution did not: emergency powers that have the potential for creating emergencies rather than ending them. Presidents have built on these powers with their own secret directives. What has prevented the wholesale abuse of these authorities until now is a baseline commitment to liberal democracy on the part of past presidents. Under a president who doesn’t share that commitment, what might we see?
I’m not so sure about that “baseline commitment” thing (see NOTE at the end of this post), at least not in recent decades, and even going quite far back. Lincoln was bitterly criticized for suspending habeas corpus during the Civil War, for example. Harry Truman lost a court battle to be allowed to seize the steel mills during the Korean War. President Obama expanded presidential power to do an end run around Congress via executive orders.]