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Law & the Courts

The Emergency Question

I don’t think it’s a good idea for Trump to go down the national emergency route for a number of reasons, but as I’ve been reading up on the legal question, I’ve been surprised how many serious center-left commentators and outlets think it’s genuinely an open question whether the president can do this under the law.

Here’s Bill Galston in the Wall Street Journal:

Eminent constitutional scholars, including many who are no fans of President Trump, disagree on whether the president has the authority to build the wall via a national emergency. Yale’s Bruce Ackerman argues that such action would be illegal and that military personnel who assisted would be breaking the law. Harvard’s Mark Tushnet, in contrast, says that the president would be on “very solid legal ground.” Taking a middle position, University of Texas law professor Stephen Vladeck observes that “we’re in uncharted territory,” adding that there’s a long list of statutes that “give far too much power to the president but that we didn’t used to worry about because we assumed there would be political safeguards.”

Here’s a piece in Lawfare that is agnostic on how it would go in the courts:

In normal times, that is certainly the safe bet; there is a longstanding, robust “national security fact deference” tradition.  Indeed, I wrote all about the underlying justifications for such deference (and their limitations) in this article. But we are not in normal times. The border litigation quickly would join the Travel Ban and Steel Tariffs litigations as instances in which a formal claim of national security justification would run up against serious skepticism about whether that justification was just a litigation smokescreen masking different reasons motivating the president. The outcome in Travel Ban suggests that it remains unwise to bet against the executive branch in such cases, of course, but one never knows these days.

And here’s another piece in Lawfare that strikes a similar tone:

So there is not a terrible argument that the president may really have statutory authority to build a wall pursuant to a declaration of national emergency. But the legal argument is not terrible in large part because the authorities at issue are relatively narrow. If the White House were to find the basis for emergency authority to build the wall in Article II, that claim would sweep much more widely—and would be much more troubling for onlookers worried about a slide toward authoritarianism.

Conversely and more than a little ironically, as alarming as any declaration of national emergency may sound, reliance on § 2808(a) or § 2293 would place Trump’s actions in Jackson’s first category in Youngstown—the least controversial. The administration would be making an argument that the president is acting within a statutory framework provided by Congress, rather than pointing to the kind of independent, unilateral authority that comes to mind when one hears the term “state of emergency.” This is not “sovereign is he who decides on the exception” but a president exercising power delegated to him by a co-equal branch of government consistent with the structure of separation of powers—and likewise subject to review in litigation by another co-equal branch of government.

Finally, here’s Jonathan Turley in a piece for The Hill:

I happen to agree that an emergency declaration to build the wall is unwise and unnecessary. However, the declaration is not unconstitutional. Schiff, now chairman of the House Intelligence Committee, insists that Trump “does not have the power to execute” this order because “if Harry Truman could not nationalize the steel industry during wartime, this president does not have the power to declare an emergency and build a multibillion dollar wall on the border.”

The problem is Trump does have that power because Congress gave it to him. Schiff is referring to the historic case of Youngstown Sheet and Tube Company versus Charles Sawyer, in which the Supreme Court rejected the use of inherent executive powers by President Truman to seize steel mills during a labor dispute. He wanted to claim a national security emergency if steel production halted during the Korean War. In a powerful check on executive authority, the Supreme Court rejected his rationale for unilateral action. The Supreme Court was correct. But that was in 1952.

More than two decades later, Congress expressly gave presidents the authority to declare such emergencies and act unilaterally. The 1976 National Emergencies Act gives presidents sweeping authority as well as allowance in federal regulations to declare an “immigration emergency” to deal with an “influx of aliens which either is of such magnitude or exhibits such other characteristics that effective administration of the immigration laws of the United States is beyond the existing capabilities” of immigration authorities “in the affected area or areas.” The basis for such an invocation generally includes the “likelihood of continued growth in the magnitude of the influx,” rising criminal activity, as well as high “demands on law enforcement agencies” and “other circumstances.”



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