It seems increasingly likely that President Trump will declare a national emergency at our southern border in order to access funds to build a wall. Last week, I had the pleasure of debating National Review’s very own David French on the legality of such a move in a Federalist Society-sponsored tele-conference. I wanted to take the opportunity to further explain my defense of Trump’s legal authority in response to David’s excellent points.
David and I agree that Congress has not placed any serious limits on the president’s power to declare an emergency and that the Supreme Court was unlikely to second-guess him. For much of our history, presidents have understood the Constitution’s grant of “the executive power” to include a power to declare national emergency. Thomas Jefferson effectively did so in response to Aaron Burr’s effort to raise a rebellion in Louisiana; Abraham Lincoln did so, with far more justification, at the start of the Civil War; FDR did so, with far less justification, at the start of his presidency in response to the Great Depression; and Harry Truman did so at the start of the Korean War.
In 1976, Congress enacted the National Emergency Act in its burst of post-Watergate reforms designed to restrict presidential power. While the new law terminated most existing emergencies, it did not set out any definition of a national emergency or limit the president’s ability to declare one. The law only sets out the process for publication and congressional notification of the president’s declaration. So David and I agree that there are few limits on the president’s ability to declare an emergency for good reason. Indeed, every president since 1976 has used the NEA to declare a national emergency, several under circumstances far less immediate than this one, and the Supreme Court has never overturned one.
But David and I disagree on a broad conceptual question. I think he, and other prominent critics, view Trump’s apparently impending declaration through the lens of Youngstown Sheet & Tube Co. v. Sawyer (1952). In Youngstown, the Supreme Court reversed President Truman’s seizure of the nation’s steel mills, which a broad labor strike had closed. President Truman argued that steel was critical to the production of armaments needed for the Korean War. Writing for a 6–3 majority, Justice Hugo Black concluded that taking possession of private property — here, the steel mills — was a legislative function of government vested in Congress, not the president. Since Congress had rejected amendments to the federal labor laws that would have granted the executive such a power, Black concluded, Truman was without constitutional or statutory authority to seize the mills. According to David, a Trump declaration of emergency would amount to a similar act without legal authority.
I believe, however, that Youngstown is not the right analogy to the present circumstances. Trump does not claim that he has an inherent presidential power to declare an emergency and build a wall. Even if he did, I think that there would be important differences between Truman’s seizure of the steel mills and a wall. Here, unlike Youngstown, there is no direct conflict between Congress and the President. Congress has not passed a law denying the President the authority to take measures to protect the border; in fact, in 2006 Congress passed a law by bipartisan majorities authorizing the construction of a wall. In Dames & Moore v. Regan (1981), the Court found that when Congress broadly delegates a general power to the executive branch in the area of foreign affairs, such as the power to impose economic sanctions, it would not read Congress’s neglect to grant a more specific, related authority as foreclosing the president from exercising that authority. Instead, it would treat Congress’s silence as acquiescence to presidential initiative, especially in times of emergency. That is exactly the case here: Congress has authorized a wall and other security measures at the border, it has not passed any law forbidding such a wall, and the president has invoked delegated powers to continue the wall’s construction.
Justice Black also found important that Truman’s seizure of the mills occurred outside the “theatre of war” and so was “a job for the Nation’s lawmakers, not for its military authorities.” A World War II case, by contrast, had correctly upheld the destruction of civilian property in the Pacific as a matter of military necessity. The construction of a border wall would be closer to the latter case than to Youngstown. President Trump does not seek to nationalize a large segment of the domestic economy far from the battlefield. Instead, he seeks to order the military to build a border wall directly at the point of the emergency, without any seizure of domestic industry. Private-property owners whose land the government might need for construction would have a right to just compensation, which the administration should wisely, and quickly, pay.
Trump would not even need to invoke his inherent constitutional powers. The White House could declare an emergency under the NEA and then draw funds from any statutes which allow new spending during such periods (more on those shortly). He would not have to claim a constitutional power to move money around during an emergency, which Lincoln did when he raised an army and navy after the firing on Fort Sumter without congressional appropriation. Instead, he could claim he was acting pursuant to congressional delegation of authority to the executive branch.
In that respect, this case would be governed not by Youngstown, but by Dames & Moore v. Regan. In Dames & Moore, the Supreme Court addressed the actions taken by the Carter and Reagan administrations to settle the Iran hostage crisis. Under the deal reached with the mullahs in Tehran, the United States had to suspend claims against Iran in U.S. courts, nullify any attachment of Iranian assets pursuant to court order, and transfer all Iranian funds in U.S. banks to a U.S.–Iran claims tribunal in the Hague. President Carter triggered emergency powers under the International Emergency Economic Powers Act of 1977, which allowed him to suspend the claims and to transfer bank funds — but, importantly, did not allow him to lift court orders freezing assets. The Court, however, upheld Carter’s order in toto anyway. His action was “supported by the strongest of presumptions and the widest latitude of judicial interpretation,” Justice William Rehnquist wrote, “and the burden of persuasion would rest heavily upon any who might attack it.” Because the president was acting pursuant to congressional delegation, the Court observed, “a contrary ruling would mean that the Federal Government as a whole lacked the power exercised by the President, and that we are not prepared to say.”
I believe that the Roberts Court — but perhaps not lower courts, especially those that view themselves as part of the resistance to the Trump administration — would grant the same generous deference to President Trump. Here, Congress has passed at least two laws that give the president the power to transfer funds to a construction project, such as a wall, after a declaration of emergency. The first, Section 2808 of Title 10 states that:
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.
David and I agree that if Section 2808 applies, then the courts would not stand in the way of a Trump order redirecting funds from existing military construction projects to a border wall. David argues, however, that the emergency would not be one that “requires use of the armed forces” and that a wall would not be “necessary to support such use of the armed forces.” He has asserted that immigration law is under the jurisdiction of civilian authorities — namely, the Immigration and Customs Enforcement agency within the Department of Homeland Security — and that statistics show that there is no increase in illegal migration across the southern border that requires deployment of troops or construction of a wall.
I disagree here with David’s analysis of Section 2808. As commander-in-chief, President Trump has ordered 3,000 troops to defend the integrity of the border. This recalls the U.S. Army to its roots: safeguarding the frontier. For much of American history, the primary purpose of the armed forces was border defense, not exporting democracy or keeping the peace in Europe and Asia. I do not think that Congress can unilaterally transform a historic military mission — safeguarding the nation’s territorial integrity — into a civilian law-enforcement mission through immigration laws. That would effectively allow Congress to reduce the Constitution’s grant of the commander-in-chief and executive powers to the president through a law’s characterization of the border. This argument is even stronger if the military at the border is not enforcing immigration laws — which it appears not to be, and which it arguably could not because of the Posse Comitatus Act’s bar on military enforcement of federal law within the country — but providing protection of the border and supporting civilian agencies operating there. The U.S. Army is not catching illegal aliens and handing them over to immigration courts. That remains ICE’s job.
David further argues that a wall is not “necessary to support such use of the armed forces.” There might be an unusual, technical meaning to “military construction projects” that are “necessary” to support troops, much like words in the tax code do not seem to mean what common sense would suggest they do. But if we go by the plain words of the statutory text, a wall would clearly support the troops deployed at the border. A wall would make the troops safer by protecting them and reducing the size of migrant flows. A wall would also reduce the size of necessary deployments along the border by reducing the area that must be patrolled. Further, decisions over what “requires” the armed forces and what is “necessary to support” them traditionally have rested with the president and have rarely, if ever, been second-guessed by the courts.
The second law involved here is Section 2293 of Title 33 of the U.S. Code. That law allows the secretary of defense to reallocate funds from military construction projects:
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.
This statute appears even more generous than Section 2808. It does not demand that a national emergency require the use of the U.S. Armed Forces; it allows that an emergency that “requires or may require” their use will do. It also does not require that the construction be necessary to support the armed forces. Instead, it requires that (a) the civil works, military construction, or civil defense project be “authorized”; and (b) the project be “essential to the national defense.”
As John Eastman has observed, the Secure Fence Act of 2006 authorized construction of a wall along the U.S.–Mexico border, which satisfies condition (a). David could argue, in response, that a wall would not be “essential to the national defense,” and would thus fail condition (b). We probably agree that the courts would be reluctant to review what construction projects are essential or not to the national defense. This is especially so where, as here, the phrase is repeated, but nowhere defined, in the U.S. Code. A quick spin through various federal laws and regulations indicates that the phrase arises primarily with regard to the president’s authority to designate commodities, workers, and even industries as essential to the national defense, or the president’s right to protect classified information. There does not appear to be any definition of what construction projects are essential to the national defense. The Supreme Court would likely give the president the broadest deference to decide whether any construction project, even a border wall, satisfied this statutory language.
This makes perfect sense. It would be difficult, if not impossible, to define by antecedent law what is militarily necessary. Would the courts review whether the president’s decision to build a particular base, road, waterway, airport, fortification, defense structure, storage facility, arsenal, or even a bunker was “essential” to the national defense? Such a decision would depend on the circumstances and the nature of the threat, which almost by definition could not be fully anticipated by Congress. Indeed, the Framers created the federal government and the presidency precisely because they knew that it was impossible to define beforehand the nature of emergencies and crises, and that the better course was to create a body of government with the authority to act as circumstances arose. Because the “circumstances that endanger the safety of nations are infinite,” Alexander Hamilton warned in Federalist No. 23, “no constitutional shackles can wisely be imposed on the power.”
Our Framers explained that they vested the whole executive power of the federal government in a single person, the president, so that the nation would not be disabled from responding forcefully to emergencies. “Good government,” Hamilton explained in Federalist No. 70, requires “energy in the executive,” which is “essential to the protection of the community from foreign attacks” and “the steady administration of the laws.” In this case, the web of congressional authorizations and emergency powers does not contradict the constitutional scheme, but instead amplifies it. Not only do presidents still have some reservoir of constitutional authority to declare emergencies, but Congress has seen fit to enhance it with the right to re-allocate spending to support such a declaration. Despite the pleas of administration critics, the Supreme Court will almost certainly agree.
Something to Consider
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