President Donald Trump’s statement that he is considering using emergency presidential powers to build a border wall has reignited an old scholarly debate.
"I may declare a national emergency dependent on what's going to happen over the next few days," Trump said on Sunday. The next day, the White House said the President would address the nation on Tuesday night and visit the border with Mexico on Thursday to appraise the situation there.
Trump and House Democrats remain stalemated over a $5.7 billion White House proposal for border wall funding that has led to a partial federal government shutdown. President Trump’s potential gambit could involve the use of funds appropriated to the Executive Branch by Congress – hence, the scholarly debate.
On a basic level, the debate focuses on the reach of executive power and the President’s ability to determine what a national emergency is and how the executive branch can respond to it. After the Vietnam and Watergate eras, Congress passed the National Emergencies Act in 1976 to better define the roles of the President and Congress when a national emergency is declared.
A Congressional Research Service report from 2007 explains the debate over executive powers in this area goes back to the time of English philosopher John Locke, who envisioned a need for emergency executive powers when legislative powers were lacking or unavailable. President George Washington used executive emergency powers to put down the Whiskey Rebellion. President Abraham Lincoln also used emergency powers during the Civil War that tested constitutional boundaries.
But in modern times, Presidents started to declare national emergencies of an indefinite length. The 1976 act gives Congress a role in that process, with the option available through a joint resolution to end a national emergency declared by a President. The act also requires the President to cite which “statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.” Also, the President needs to show Congress where money is spent during an emergency. But the President retains the power to declare and then continue a national emergency with notice to Congress.
One controversy in the current debate centers on the possibility that the President could direct the Defense Department to reallocate funds from other projects to pay for the border wall project – to address a concern raised by the President in an emergency declaration. A basic question here is related to the Constitution’s Appropriations Clause, which gives Congress the general power of the purse. In our Interactive Constitution, Yale Law’s Kate Stith explains a key issue involving presidential emergency powers.
“The Appropriations Clause would appear to categorically enjoin the President and federal agencies to spend funds only as appropriated by Congress. Even where the President believes that federal spending is urgently needed, spending in the absence of appropriations is constitutionally prohibited,” Stith writes. “Of course, where an emergency exists, a President may decide that principles more fundamental than the Constitution’s appropriations requirement justify spending. For instance, at the outbreak of the Civil War—with the Nation itself at risk—Lincoln ordered the expenditure of two million dollars in federal funds in advance of appropriations.”
Some observers see congressional spending approval as a key issue. “The Constitution is clear that Congress controls the power of the purse and must approve the spending of all federal money. No exception to this is mentioned in the Constitution or has ever been recognized by the courts,” said UC Berkeley School of Law dean Erwin Chemerinsky in a Los Angeles Times op-ed.
But others think the President has the ability to use discretionary funds to pay for a project like a border wall. Harvard Law School professor Mark Tushnet told NBC News that Congress gives the President annual appropriations that don’t have a designated use. “My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground,” Tushnet said.
Another question is how President Trump would meet the 1976 National Emergencies Act qualification that an emergency declaration is related to an existing law or statute. Yale Law’s John Fabian Witt has cited two possible statutes that the White House could use in an executive order or proclamation. One is U.S. Code § 2293, which allows the Secretary of the Army in a national emergency to “apply the resources of the Department of the Army’s civil works program … [to] the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.”
The other is U.S. Code § 2808, which allows the Defense Secretary during a national emergency 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.” This law also includes an important provision that the Defense Secretary needs to tell Congress about the “estimated cost of the construction projects, including the cost of any real estate action pertaining to those construction projects.”
The question of acquiring private real estate for a wall project is critical, since two-thirds of the project's projected land belongs to private parties. Circling back to Dean Chemerinsky’s argument is the Supreme Court’s landmark decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), when a divided Court blocked President Harry Truman from seizing privately owned steel mills during a national emergency. Chemerinsky says that in Youngstown Sheet that, “Justice William O. Douglas explained that seizing the steel mills would require that Congress appropriate funds to pay for the taking of private property, and the President cannot take over the spending power, which belongs to Congress, in this way.”
University of Pittsburgh School of Law's Gerald S. Dickinson also sees the issue of the military making eminent domain claims as a potential “roadblock,” but he also points out a distinction within the Youngstown decision. “While the Youngstown ruling restricted the ‘presidential’ power to take private property during a national emergency, without statutory authorization, the court’s majority opinion did not explicitly restrain the ‘government’ power to seize private property during a national emergency,” Dickenson said in an op-ed for The Hill.
To be sure, there are many other important arguments about a potential border wall executive order. George Mason Law’s Ilya Somin outlines most of the current ones on the Volokh Conspiracy blog and concludes that while he doesn’t believe President Trump could use appropriations for a wall, the courts also tend to defer to the President on national security matters. “I would be lying if I said I could confidently predict the outcome of a legal battle over this issue,” Somin said.
And that seems to be one outcome observers and experts agree on: There will be legal challenges in a scenario where the White House seeks to build a border wall using executive emergencies powers.
Scott Bomboy is the editor in chief of the National Constitution Center.