One of the first rules of effective litigation is that you don’t want your client to make statements out loud that reveal the weakness of your legal case. On Sunday morning, Trump adviser Stephen Miller violated that rule. In a remarkable exchange with Chris Wallace, he demonstrated the extraordinary weakness of the administration’s statutory argument. Here’s the exchange:
WALLACE: OK, here’s Article 1, Section 9, Clause 7, of the Constitution as written. “No money shall be drawn from the Treasury but in consequence of appropriations made by law.”
Isn’t what President Trump wants to do a clear violation of what the Founders — of what James Madison talked about as giving Congress the power of the purse?
MILLER: No, because Congress in 1976 passed the National Emergency Act and gave the president the authority, as a result of that, to invoke a national emergency in many different circumstances but among them the use of military construction funds.
And that was the point I was making earlier. If the president were to say we’re going to use military construction funds to, say, increase a perimeter around a base in Bagram, around a base in Syria, nobody would even say anything about it, and we have 4,000 troops on the border right now and as a result of that mission, they need to secure those areas where they’re patrolling. (Emphasis added.)
Why is this exchange so damaging? As I explained last Friday, the Trump administration is relying on a specific statute — 10 U.S.C. Section 2808 — to unlock approximately $3.6 billion in military construction funds to build the wall. This statute, however, doesn’t empower the president to build whatever structures he wants. It limits funding to emergencies that “requires the use of the armed forces” and even then only provides funds for “military construction projects” that are “necessary to support [the] use of the armed forces.” Moreover,“military construction” and “military construction projects” are terms precisely defined by a separate statute to mean improvements to a “military installation,” and a “military installation” means facilities like a “base, camp, post, station, yard, [or] center.”
So, yes, putting a fortification around Bagram in Afghanistan or a base in Syria fits precisely within the scope of the statute. The bases are classic military installations in active war zones (thus, obviously requiring the use of the armed forces) and in a declared emergency, the president would absolutely have the power to move funds to fortify those installations. But what if there is no war zone? What if there’s no military installation to fortify? Well, here’s Miller to tell us that the statute allows Trump to build a permanent civilian structure (to be permanently manned by civilians) to protect the troops who are present on a temporary deployment in peacetime along the border of an allied nation. That’s absurd.
This interpretation simply doesn’t match the plain language and obvious intent of the relevant statute. The hope for the administration is that the mere invocation of the troops — even in peacetime — induces a court to defer to the president. But judicial deference to presidential national-security determinations has never been unlimited, and in the total absence of a state of armed conflict granting the president the exclusive power to interpret (and torture the meaning of) the relevant statutes would do damage not just to the separation of powers but would also violate basic principles of originalism and textualism.
Stephen Miller is a capable defender of the president’s policies. The fact that this is the best case he could make is ominous news for the administration’s legal defense.