Let me begin by stating my policy preference up front. I strongly believe that our nation should bolster its border security, including by building a more effective and longer border wall. A better border barrier would represent a far more humane way of deterring desperate individuals and families from making the extraordinarily dangerous trek to the United States, would properly channel asylum seekers to ports of entry, and would ease the need for border detention facilities.
If you believe a nation can and should control who enters its borders, then border barriers are one part of a solution to the problem of illegal entry. But the wall is a symbol now. Democrats will not consent to constructing the founding promise of Trumpism, and Trump (for now, at least) won’t abandon his signature proposal.
So he’s floating the possibility of declaring a state of emergency, using a “military version” of eminent domain to seize private land along the border, and building the wall without congressional consent. This would be a serious mistake — a lawless abuse of power that would almost certainly be blocked by the courts (including by Trump-appointed judges). In the remote chance it passed legal review, his declaration would have malignant effects on the American constitutional structure. He would enable future presidents to wield vast powers at a whim, shaking the president loose from his constitutional bonds once and for all.
The legal analysis here is relatively simple. The president does not have the constitutional or statutory authority to unilaterally declare an emergency under these facts, seize private land, and spend money to build a wall. The constitutional question was settled during the Korean War. At the height of the conflict — when the United States was locked in a grueling land conflict with hundreds of thousands of Chinese and North Korean troops — President Truman attempted to “take possession of and operate most of the nation’s steel mills” to avoid a strike by the United Steelworkers of America.
The necessity of steel to modern military operations is too obvious to require explanation, but the Supreme Court still blocked the president’s takeover. Justice Black, writing for the majority, declared that the president’s authority to act must derive from an “act of Congress or from the Constitution itself.” Since there was no specific enabling statute, Truman attempted to rely on inherent executive powers and his authority as commander-in-chief. The Court rejected his arguments:
The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces . . . Even though “theater of war” be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.
With the president’s authority constitutionally constrained in a time of actual war, President Trump won’t have greater power when the “foe” isn’t the Chinese Army but instead a caravan of poor, unarmed Hondurans.
So, if the Constitution doesn’t empower Trump to build the wall unilaterally, has an act of Congress granted him the power? No. Not under any fair reading of the relevant statutes.
It is true that the president has broad authority under the National Emergencies Act to declare various states of emergency. Most Americans don’t realize this, but America is awash in a series of declared emergencies. In a December 2017 article for Lawfare, Catherine Padhi explained that we are currently in 28 separate federal states of emergency. Indeed, America has been under some form of “emergency” footing for 39 continuous years.
CNN has a comprehensive list of these “emergencies.” When you peruse it, you’ll see that many of these “emergencies” have little relevance to most Americans’ lives. For example, we’re in a state of emergency to “Block Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus” and to “Block Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo.” Others are far more consequential, like the September 14, 2001, “Declaration of National Emergency by Reason of Certain Terrorist Attacks.”
The reason the public largely doesn’t track these emergency declarations is that they don’t make the president an autocrat. Instead, they unlock powers that are themselves limited by statute. And, in this case, the two relevant statutes for the border wall are simply not broad enough to encompass Trump’s dream of “military” eminent domain.
The first statute is 10 U.S.C. Section 2808. Its language is relatively restrictive:
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. [Emphasis added.]
Note the key limitations. The president would have to show that the “emergency” requires the use of the military — a difficult task in a time of peace when the relevant border is with a national ally. It’s a task rendered even more difficult by the fact that border security is a function of the civilian Department of Homeland Security, not the Department of Defense.
Even then, the language indicates the funds can be used only to support the “use” of the armed forces. This strongly implies that the funding would be reserved for projects that benefit the military. That conclusion is buttressed by the next section, which relates to a different category of project — those projects that are actually essential to national defense. 33 U.S.C Section 2293 states:
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. [Emphasis added.]
Once again, I’ve highlighted the relevant provisions. Section 2293 grants the president greater discretion in one clause, then limits that discretion in another. While the emergency only “may require” use of the military, the project must be both “authorized” and “essential” to “national defense.” The language plainly contemplates shifting of funds from one or more projects to other projects already authorized.
A new or expanded border barrier has not been authorized by any lawful process.
Moreover, there is no credible showing that expanded border barriers are essential to our national defense. The administration has been trying to emphasize the alleged national-security threat on the southern border, but as it describes the threat of terrorist entry, it’s inadvertently highlighting that suspected terrorists make use of other entry points than the southern border — namely, airports. In 2017, Trump’s State Department said that it had “no credible information that any member of a terrorist group has traveled through Mexico to gain access to the United States.”
In September 2018, the State Department revised its statement to read: “At year’s end there was no credible evidence indicating that international terrorist groups have established bases in Mexico, worked with Mexican drug cartels, or sent operatives via Mexico into the United States. The U.S. southern border remains vulnerable to potential terrorist transit, although terrorist groups likely seek other means of trying to enter the United States.”
We should be vigilant about controlling access to our country. I believe that more border barriers are an important aspect of border security. But words mean things, and the idea that a border wall is so “essential to the national defense” that it “may require the use of the Armed Forces” to deal with a national emergency is to stretch the plain meaning of the statute past the breaking point.
Critically, we cannot forget that in a time of peace, border security is a civilian function, and the penalties for unlawful crossing are matters for civilian law enforcement. Illegal entry is only a misdemeanor under federal law, and there are profound legal limits on the use of the armed forces in a law-enforcement capacity. In the New York Times, Yale professor Bruce Ackerman claims that if members of the military built the wall, they would commit a federal crime.
I don’t think Ackerman is right. The statute renders criminal the “use” of the armed forces to “execute the laws.” The legal liability (if any) would likely attach to the commander-in-chief. And it is less likely that the so-called posse comitatus statute would be used to enforce actual criminal liability than it is that the statute would help inform the courts as they interpret the statutory scheme applicable to use of the Armed Forces. In other words, ambiguity on domestic military use in peacetime and in the absence of extraordinary armed confrontations may well be resolved against the president.
Make no mistake: If President Trump attempts to defy the Constitution and federal statutes to use the military to seize land and build a wall without proper congressional appropriation, he’ll commit a grave abuse of power. Fortunately, our system of checks and balances will likely intervene to stop his lawless project before it starts, but it is still the president’s principle job to preserve, protect, and defend the Constitution — not to expand the power of an increasingly imperial presidency. The wall needs to be built through the proper constitutional process or not at all.