Can the President Declare a National Emergency to Build the Wall?

President Trump and congressional Democrats remain at an impasse over a White House proposal to fund the construction of a southern border wall. The president has said that if Congress decides not to appropriate the funds, then he will “probably” declare a national emergency to circumvent Congress and build the wall. On this episode of We the People, we ask: what would happen if the president decided to declare a national emergency and divert military funds to build the wall? What statutes could he rely on? And would such an action be constitutional? Host Jeffrey Rosen and guests Mark Tushnet of Harvard Law and Sai Prakash of University of Virginia Law explore the constitutional clauses, cases, and laws at issue in this hotly contested debate, including the Take Care, Appropriations, and Takings Clauses of the Constitution, the Youngstown Sheet & Tube Co. v. Sawyer case, and the National Emergencies Act of 1976 and related statutes.  

FULL PODCAST

Note: An early transcript of the podcast is linked here. This text may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

PARTICIPANTS

Sai Prakash is James Monroe Distinguished Professor of Law at the University of Virginia Law School where his scholarship focuses on executive power and separation of powers. He is the author of Imperial from the Beginning: The Constitution of the Original Executive and a contributor to the Interactive Constitution Article II explainers on The Vesting Clause and Article II Section 3.

Mark Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School specializing in constitutional law and history and skeptically studying the practice of judicial review. He is the author of numerous leading casebooks on constitutional law, and his most recent book is The Constitution of the United States of America: A Contextual Analysis.

​​​​​​Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” 

Additional Resources

• Youngstown Sheet & Tube Co. v. Sawyer (1952)
• Dames and Moore v. Regan (1981)
• 50 U.S.C. Section 1601, “The National Emergencies Act of 1976.”
• 10 U.S. Code Section 2808, “Construction authority in the event of a declaration of war or national emergency.”
• 10 U.S. Code Section 284, “Support for counterdrug activities and activities to counter transnational organized crime.”

This show was engineered by Greg Scheckler, and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott.

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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the national Constitution Center and welcome to We the People, a weekly show of constitutional debate. The national Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. President Trump and house Democrats are at an impasse about a White House to build a wall on the southern border and President Trump has talked about the possibility of issuing an order declaring a national Emergency to build a wall. On this episode of we the people we ask, what would happen if the president decides to declare a national emergency and divert military funds to build a wall? What statutes could he rely on and would this action violate the constitution? Here to illuminate the statutory and constitutional arguments on all sides are two of America's leading constitutional Scholars, and I'm thrilled that they've agreed to join us. Sai prakash is James Monroe distinguished professor of law at the University of Virginia law school. He is the author of Imperial from the beginning the constitution of the original executive and a contributor to the interactive constitutions article to explainers on the vesting clause and the take care clause which dear We the People listeners, please check out after the show. Sai thank you so much for joining.

Sai Prakash: [00:01:31] Great to be here Jeff. 

Rosen: [00:01:33] And Mark Tushnet is William Nelson Cromwell professor of law at Harvard Law School. He is one of America's leading constitutional Scholars author of the leading case book on constitutional law, which I have the pleasure of using when I teach constitutional law and his most recent book among many is the Constitution of the United States of America the contextual analysis. Mark it's an honor to have you with us.

Mark Tushnet: [00:01:57] Thanks for having me. 

Rosen: [00:01:59] Let us begin with the broad and obvious question and we will begin with Sai. If President Trump were to issue an executive order declaring a national emergency and diverting Military funds to build the wall would that violate the constitution or not?  

Prakash: [00:02:16] Well Jeff, I think the answer to that really turns on the statutory question. I don't imagine. That the president or his lawyers will make an argument that's grounded entirely on the Constitution.   They'll make references to the president's role as commander in chief, they'll make references to national Security. But I don't imagine that they'll say that the constitution independently grants the president authority to take money from the treasury and build a wall instead. They'll be relying primarily on statutory arguments. And so whether the president has authority to build a wall will be primarily a question I think of statutory law. There'll just be some references to national Security that are designed to try to get listeners to support the president's actions.

Rosen: [00:03:04] Many thanks for that. We will delve into the statutory arguments in a bit. But Mark, let me begin by asking you the same question: if the president were to issue a national emergency order would that violate the constitution or not? 

Tushnet: [00:03:19] I think the way to think about that is to start with the proposition which I think most constitutional theorists agree with that. Every government has to have lodged in it somewhere the power to declare emergencies. With the effect of suspending some existing laws. The real question is I think we're that power is going to be located and in our system, there are I think. Two candidates one as I suggested is that the power is ultimately lodged in Congress, which then can delegate to the president the power to declare emergencies under conditions that Congress has specified or. The alternative is that the power is lodged in the president through something like the take care clause or even certain foundational Notions of what it means to have a constitution for an ongoing national government. 

Rosen: [00:04:35] Sai you mentioned that it would turn on the statutory question because you don't think there's a residual executive power. Tell us about the Youngstown case where President Truman tried to seize the steel mills and the court by a 6 to 3 vote said he couldn't rely on his commander-in-chief power to do that and the Congress, far from authorizing the action had, refused to authorize it and Justice Jackson famously gave us three categories: one when Congress has authorized the action and the president operates at his highest level of constitutional security, two the kind of zone of twilight where congress's intent is ambiguous and third where Congress has refused to authorize the action and there the president's power is at its lowest ebb. The Youngstown Court found that Truman's action was in the lowest ebb category because Congress had refused to authorize the stopping of the strikes in question. How do you think this situation would compare to Youngstown and which of Justice Jackson's categories do you think the president's actions would fall into?

Prakash: [00:05:38] Well, I certainly want to answer that Jeff. But I also want to at the end of my remarks perhaps get back to what something that Mark spoke of I think again this, you know, if you- once you're in the Youngstown framework that you so expertly outlined it's really a function of how to read congress's actions in this area. And on the one hand Congress- the president has specifically asked Congress right now to give him money to build a wall. And thus far they haven't given him the money that he wants- certainly not as much as he wants. On the other hand the president's lawyers are going to cite statutes that they believe allow him to shuffle money around and to use that money to build a wall without regard to whether or not Congress has acquiesced to his current demands and so, you know Youngstown itself talked about these three categories, but it's clear that you know, sometimes congressional action is murky; it's not obvious how- where to locate it; has Congress  approved of something? Has Congress  disapproved of something? Was Congressman truly silent? And of course, you know, you could make an argument for all three of those categories in this case. You could argue that by Statute - I'm sure the president's lawyers will do this - by Statute Congress has authorized him to to move and Shuffle money around. You could argue that Congress has implicitly disapproved of this by not giving him the money that he's now currently seeking, and you could argue that Congress just hasn't, you know hasn't spoken to the question of whether or not the president, you know has statutory authority to shuffle things around. They haven't revisited the statutes in question that the president's likely to rely upon to say, you know, either definitively that he can use that  money to build the wall or to say that he can't so I think you know the Youngstown framework seems quite interesting, but the problem has always been how to actually characterize the activity in question. That was true in that case and it's equally true today. 

Rosen: [00:07:39] Mark, Sai is interested in taking up the Constitutional as well as the statutory question and I was too after your first remark. So I'll ask you which category of Youngstown you think the action would fall into and in Youngstown Truman's lawyers initially claimed that there was inherent executive Authority separate from the Congressional authorization. Do you think that the president could rely on his take care authority to declare a national emergency? Independent of the statutes and and then where do you think the statutes fall out? 

Tushnet: [00:08:15] I actually have a fairly expansive view of presidential Authority. So just to outline the argument the president has the duty to take care that the laws be faithfully executed, those laws include the Constitution. The Constitution is the Constitution of the United States. So it presupposes that there is a United States. And so if in the president's judgment the action is necessary to preserve the United States as a nation. I think he can take care of by declaring an emergency and doing what is permissible. I do think it's worth noting that there is a difference between what President Truman did in the steel seizure case and the current situation, at least unless you push the argument further because in addition to the commander-in-chief or whatever other powers the president might have there's actually an Express Prohibition in the Constitution dealing with spending money. Article 1 Section 9 says no money shall be drawn from the treasury, but in consequence of Appropriations made by law, so if the current president even after declaring an emergency, wants to spend money, he's got to find it in some already appropriated fund 

Rosen: [00:09:48] Sai, what is your response to what Mark called his expansive view of executive power under the take care Clause. What would the framers have made of that claim? And what do you think of his thoughts on the relation between the take care and the Appropriations Clause?

Prakash: [00:10:04] I think from an Originalist perspective Jeff I would say that the founders did not believe that the president had any emergency power. The one exception would be the president's power to call back Congress into session, which I believe they gave the president in order to get Congressional authorization to take the emergency measures that he thought was necessary. I think the way that the founders thought about emergencies, they thought that the legislature ruled The Roost so to speak; that the legislature could suspend habeas corpus, the legislature could authorize martial law, in advance of an emergency Congress might provide authority to the president. And of course Congress has done that in numerous statutes. And so that's the way I think they thought that most emergencies could be handled as a legal matter. They also thought it was possible that the executive might act illegally and then go to Congress for for absolution. And I think that actually well reflects the washington Administration. There were a number of crises during the Washington administration; George Washington never argued that he had inherent constitutional authority to deal with them. He always relied upon statutes or he didn't take the measures that he thought were necessary in order to deal with the problem. He just waited for Congress to come back and deal with those problems himself. So I disagree with mark's reading of the President's duty. I think the way I had conceived of the presidential oath is the president has to use whatever resources are at his disposal lawfully provided by Congress to deal with the problem at hand. He doesn't have the power to suspend habeas corpus to expend money or to raise the size of the army, even if he thinks it's necessary to do so, he can he can take those actions, he'd be acting illegally and then it's up to Congress to decide if it wants to forgive him, but it's not illegal act. I think the duty in the oath doesn't Supply Power. It just imposes an obligation. 

Rosen: [00:12:06] Thanks for that. Mark, your response? Sai says that your broad vision of executive power is not consistent with the original understanding. Do you agree or disagree with that? Where do you root the broad vision and how ultimately would you come out on the interplay between the take care and the Appropriations Clause as a constitutional matter?

Tushnet: [00:12:23] I think the- I guess the way I would put it is developments in thinking about what constitutions do since the framing period have brought in to view the problem that legislatures really can't anticipate all the kinds of emergencies that might arise and that there might be call them logistical problems in calling them back to get them to do something when an unexpected or unanticipated emergency arises and at the very least in that interim period, I think a well-designed constitution would authorize the president to- would actually affirmatively authorize the president to take action rather than in as in Sai's Vision allow the president to take the action in an extralegal kind of way subject to subsequent ratification by Congress. I think it's I- my view is the action would be lawful from the beginning in this interim period and then it might be terminated by Congress when it came back into session, but it would be lawful when taken.

Rosen: [00:13:56] Sai understanding that our vision of executive power has strayed from the founding era might Mark's broad Vision plausibly be rooted in practice under which presidents have claimed emergency powers under the Constitution and courts have been quite open to the idea, especially in the 20th century?

Prakash: [00:14:15] I think Mark is onto something in terms of modern conceptions. I think there are many people who share the idea that the executive should be able to take interim steps. Certainly when Congress is not in session. Of course, that was Abraham Lincoln's justification for the suspension of habeas corpus: Congress was not in session and he thought it was silly to suppose that only Congress could suspend habeas corpus. And so I think that way of thinking has influenced people and  obviously in more recent times I don't think there's any firm boundary for for that sort of thinking. I think as mark's comment suggested, if you believe that then you're going to come away perhaps thinking that the President should be able to do anything he thinks is necessary while Congress is not in session then Congress can perhaps respond. In Youngstown itself, I think there are Scholars who, when looking at the notes of the conference of the justices conclude that had Truman's order actually been temporary Truman would have won the case. It was the indefinite nature of the seizure that lost the case for him. But of course he wanted it in an indefinite seizure because a temporary seizure wouldn't have accomplished his purposes. His purposes I think were partly political and not entirely or primarily related to the Korean War. 

Rosen: [00:15:35] Well in order to make a judgment about whether or not the president's actions today would be justified under federal law we have to look at the national Emergency act which is one of the key statutory Provisions authorizing emergency reallocation of certain military construction funds and then there's another statute that authorizes emergency reallocation of civil Works projects funds. Mark, this is technical. But broadly the president's lawyers are arguing that the national Emergency act might allow the president to declare an emergency and reallocate funds that require or may require the use of the armed forces. His opponents say that you can only divert the funds to build authorized Civil Works or military construction and civil defense project that're essential to the national Defense; authorized means authorized by Congress and not just the executive branch and this action wouldn't qualify. Where do you come down on this complicated statutory question? 

Tushnet: [00:16:40] I think the statutory question is a genuinely difficult one primarily because of two features of the statute itself. The first is the language that you've read which says the emergency- when- the emergency has to require the use of the Armed Forces. Now require can be read with either a fair amount of stringency, you really need to use the Armed Forces, or more generously. It would be helpful or appropriate to use the armed forces. So that's one part. Maybe building the wall Is not something that requires the use of the Armed Forces. The second part of the statute says that the funds that can be used can be used to build and I may get the precise language wrong, but it's something like military facilities and the natural reading of that is something like Barracks for soldiers who are deployed to someplace where there wasn't housing for them or to build a landing strip for airplanes to land in a situation that in the nation where all of a sudden US forces have been deployed. So the question on that provision is whether the wall can fairly be described as a military facility in light of the things that are described as military construction elsewhere in the statute, but the natural reading of the statute would be that the wall is not that. This is not an emergency that requires the armed forces and that the wall isn't a military facility, but in the situation where the president claims that national Security is at stake, there might be interpretive principles that would be more - lead us, us meaning the people of the United States, and secondarily the courts, to be more deferential to the president's judgment.  

Rosen: [00:19:17] Thank you for parsing the statute so carefully and thoughtfully. As you say section 2808 of the statute has two requirements, which you well recited. The president can declare a national Emergency that requires the use of the Armed Forces and if that's the case you can then use the military action funds to undertake military construction projects. So understanding that those are the two criteria Sai do you think that the president will have the statutory authority to reallocate funds under this provision or not?

Prakash: [00:19:51] Well first let me say that there's I think there are multiple statutes that may bear on this question. And this is just one of them. A very useful summary of all the statutes that might apply is discussed by Margaret Taylor on the Lawfare site and I encourage readers to take a look at it. You know, I think like Mark this is not easy. I agree with Mark. It's not an easy- not an easy question to answer if we're just looking at section 2808 here. I think the first question is well, what does it mean to be a national emergency? And I think people might be surprised how easy it is to declare a national emergency and how often they're declared and the sorts of things you know that trigger a declaration of national Emergency and it might very well be that if we look at all the situations where presidents have declared national emergencies, we might come to the conclusion that very few of them are national emergencies and that when Congress legislates against this background, they know that a national emergency is not something that occurs once in a half a century but is something in fact that occurs with alarming frequency that is to say congress gives the president the authority to use certain Authority In a national emergency and then lo and behold we find national emergencies left and right. So we have this national Emergency required. We have the use of the Armed Forces. My understanding is the president deployed thousands of members of the Armed Forces to the Border prior to the election. It may very well have been to create a predicate for the use of this Authority. And then the military construction projects language that mark cited it's a little ambiguous right? Because what is a military construction project? Is a military construction project construction of a military facility which mark's suggested, or is it instead something a construction project undertaken by the military without. So whether it's for a base or not, when you look at the statutory definition of military construction that's referenced in you know, in the statute itself. It says it includes any construction development conversion of any military installation. So that language could suggest it's got to be a military installation. On the other hand, it says includes these things and it doesn't say these are the only types of things that are to be considered military construction. So I just don't find this statute- I don't think the statute tells us one way or the other. I think it would be interesting to know, how has this chapter been used in the past? What sorts of things have been constructed under it? And if there's been a tradition of building fences along the border or otherwise then obviously the president has a stronger claim. 

Rosen: [00:22:41] So I hear from both of you that the statutory question is tough and complicated but Mark I learned from your case book- I teach my students that we have these three Youngstown categories. So if you had to pick one, if you were a judge or if you had to predict which one the Supreme Court would pick, which one would it be and tell us also about the relevance if any of the fact that the president asked for money for the wall and Congress refused to Grant it? In the steel seizure case Congress had refused in the taft-hartley ACT to Grant The Authority that Truman was claiming and that was relevant to the court's determination that the action fell into the lowest ebb category. Does it matter here and which category you know in the end if you had to pick, would you choose?

Tushnet: [00:23:27] I would start out with an observation, which is that even in the category where the president's power is at its lowest ebb doesn't mean that the president's power is zero, it's just much less than it would be if Congress hadn't spoken. Second the lowest ebb is as I read the situation where Congress has affirmatively prohibited the president from doing what the president- the actions the president has taken. So I read Jackson as saying in the taft-hartley Act of 1947 and The Selective Service Act of 1950 Congress had actually prohibited the president from seizing domestic production rather than just not authorizing him to do so. I'd also note and this sort of pushes this away from the category three lowest ebb to the category 2 where Jackson says things are determined by the imponderables of events, that there's a difference between Congress affirmatively acting, that is an acting statute, and Congress not doing something that the president asked to be done. Again. We had the taft-hartley act and The Selective Service Act in the steel seizure case. Here there's nothing. No appropriation, no authorization or no prohibition on building a wall. I suppose if they had a footnote to that, in the absence of an appropriation given Article 1 Section 9 maybe there is a Prohibition flowing from the Constitution rather than from congressional action, okay. But finally the strongest case for the president I think is that there's actually an authorization in this- what 2808, it says, 2808 says when the president declares a national Emergency heretofore unobligated funds become available to the president for where the armed forces are required for military construction projects. So I think the president's case is yeah, you've said I can do this and you've given me the money to do it in these- this pot of unobligated money, true you place some restrictions on it, but the presidents' lawyers will argue that the president's judgment that our forces are necessary and that this is military Construction ought to receive a great deal of deference. So I actually think this is mostly a category 1 situation. 

Rosen: [00:26:47] Wonderful. Thank you for that very clear answer and I'm very glad to hear it especially because it allows me to ask Sai whether he agrees or not. Sai, which category would you put the president's action in if forced to choose?

Prakash: [00:27:02] Well, I think I think we need to know more about what statutes they're actually relying upon. There's also- there are other statutes as I mentioned. There's there's 10 USC 284 which is about drug intervention and Drug interdiction that allows the president to build among other things fences along the international border. There's also 33 USC 2293 reprogramming funds in a national emergency and dealing with civil Army Civil Works projects. So I think there are multiple statutes. If we're going to start from scratch and think about Youngstown what I'd say is I think if you take a look at the three categories both category 1 and Category 3 talk about the express or implied will of Congress and so I think it's possible for someone to look at what Congress has done in the past several years and say it's against the implied will of Congress for the president to expand more on a wall than Congress has specifically appropriated, notwithstanding this more General language, statutes that I just cited. So I don't think that Congressional disapproval has to be expressed contrary to what Mark is saying and you know to answer that question I think involves really you know parsing these statutes but also parsing the practices under them and then the final thing I'd say is that's the sort of beauty the indeterminacy of Jackson's categories. It's very difficult to say oftentimes when you're talking about a situation of seeming silence whether Congress has implicitly disapproved of something or not and there are cases where the court has said, you know, we think the Congress has implicitly approved of a practice where you know others have said we actually think it's implicit disapproval. So I'm thinking of the Dames and Moore V Regan case that arose during the Reagan Administration having to do with the Iranian U.S. Claims tribunal and the agreement between Iran and the United States or the Algiers Accords. The court said there was implicit approval on the part of Congress to allow the executive branch to settle International claims. But many scholars said that that was a mistake and that Congress that implicitly disapproved of the practice or at least had been silent and therefore it should have been Category 2. And so I think there's a wonderful indeterminacy to Jackson's three categories both with respect to how to characterize the congressional action in question and then as Mark points out what to do with it once you're in a particular category. None of those categories tell you whether the president wins or loses they just give you percentages, right? If you're in category one where Congress and the president are acting together Jackson predicts the president will likely win, not that he definitely will win. And if you're in category three Jackson predicts the president will lose but he doesn't say the president actually should or will lose and so, you know, I think a lot of this will turn on the judicial perception of the action in question, which will be colored more about- by the statutes and the stretches being made but also perhaps by the judges' perception of the president's motives. 

Rosen: [00:30:16] Thanks so much for that. Mark we often Overlook Justice Hugo Black's majority opinion in Youngstown, but he found that Congress had refused to authorize the authority in question, but was that refusal in fact clearer than it is here? And what is the relevance of Black's majority opinion? If anything? 

Tushnet: [00:30:44] Well again, I may have an idiosyncratic take on the opinion but my take on it is that Black is actually relying I think maybe explicitly, it's been a long time since I looked at the text really in detail, on Article 1 Section 9. I think his analysis is this: you've seized the steel mills, that creates an obligation on the United States to the steel mill owners for the taking of their property and there's no appropriation for that. And therefore you can't do it because it's a taking and Congress hasn't appropriated money for compensating for the taking. Again my reading of the current situation is that this pot of money in the unobligated funds account would allow compensation for the taking of property along the border to build the fence. So Black's analysis wouldn't in my view, Black's analysis wouldn't come into play. 

Rosen: [00:32:09] Thank you for that. Before we leave Youngstown dear We the People listeners I want to emphasize the Jackson's one the most beautiful writers of the 20th century. His prose is such a pleasure to read and for a real treat and for extra credit on the podcast check out Jackson's book That Man an Insider's portrait of Franklin D Roosevelt Oxford published it in 2003. It's just an amazing intimate portrait of FDR written as beautifully as Jackson, wrote everything. Sai final thoughts on Youngstown and black's opinion if you think that there's any thing more to say and then I want to introduce this question of whether this Supreme Court might be uncomfortable with the broad delegation of authority to the president that the national Emergency act represents. This term the court is taking up a non delegation case called Gundy involving the national Sex Offenders Act and justice Neil Gorsuch and others have expressed concern that Congress is delegating too much power to the president. So is it possible that if this case got up to the Supreme Court that the court might question congress's ability to delegate all this power of the president?

Prakash: [00:33:21] Yeah, so first on black's opinion, I think black's opinion is- you know reflects the sort of textual nature of Justice black. What's weird about Youngstown is although he gets a majority of the justices to join it many of the justices who are nominally part of his opinion write separately and express opinions that seemed inconsistent with his approach to the case. And so even though he is writing the majority opinion it doesn't appear that Justices Frankfurter or even Jackson really agree with the framework. He's propounding and you know, I don't think- the basic question I think for application of Justice blacks framework here is how has Congress authorized the transfer of funds to help build a wall and you can't answer that just by reading Justice black's opinion, right? Because of course, you know, it's possible that Congress has authorized the president to transfer funds which takes us to your second question, which is about delegation and I think you're quite right that just some justices are quite interested in Reviving a stronger version of the non delegation Doctrine. Having said that I don't know if they are also willing to do so in the context of national Security that is to say if in fact there is a case for delegations of broad authority to the executive, it is strongest in the area of national Security as opposed to areas having to deal with the economy or regulation of the airwaves or regulation of election law. So it might be that the very people who are interested in Reviving The nondelegation Doctrine aren't as interested in in revising it in the areas of national Security.

Tushnet: [00:35:08] Many thanks for that. Mark your thoughts on the non delegation Doctrine or any skepticism on the part of the conservative Justices about the broad delegations of executive power, whether they might be uncomfortable with it and might be willing to roll it back?

I think it might be valuable to here to distinguish between who the recipients of the delegated authority might be. There has been significant movement among call them constitutional conservatives to challenge delegations of authority from Congress to administrative agencies such as the FCC or the Environmental Protection Agency. I think it's- I don't think there's as much discussion in that domain of delegations of authority directly to the president or to the office of the president. Now I should say of the to my view three cases in which the court has invoked a non delegation Doctrine to involve delegations to private entities, one did involve a delegation directly to the present and the court said that was impermissible. But that was by these standards a long time ago. And to Sai's observations about the president's Authority in national Security matters and in particular national Security matters occurring in some sense outside the borders of the United States, a thought that much of the discussion of the delegation idea has accompanied an interest in unifying all the delegated power in the presidency itself and so again direct exercises of delegated authority by the president might be different in the view- in the eyes of people who have been worried about delegated authority. 

Rosen: [00:37:46] Sai, there's another series of broad constitutional issues that might arise if the court would order to uphold the president's power to declare the emergency and redeploy the money, and that involves the question of eminent domain. In a recent piece on the Volokh conspiracy Ilya somin says that it would violate principles of eminent domain to try to seize the immense amounts of private land that would be required to build the wall and Gerald Dickinson who has written extensively about eminent domain says that at the time of the framing the federal government would ask the state governments to seize land, but would never presume to do it on its own. So how serious might the pushback from judges on the eminent domain point be? 

Prakash: [00:38:37] I think the way to think about that Jeff is to first ask the basic question of whether the Congress has authorized the president to use eminent domain in this context or otherwise, and you know, I don't know of any statute that generally authorizes the president to seize private property, you know, so even if the president has statutory authority to build a fence and has Appropriations to construct it, to actually build it, I think there's a separate question of whether he could seize private land and built the fence on that land. It might well be that he could only build a fence on portions of land on the border that are already owned by the federal government. I think what the authors that you're citing are suggesting is that if you go back into the to the ancient past in the founding, this was an argument first made by Will boat, I believe the framers didn't think that the government, that the founding fathers or- the Framers didn't believe that the Congress had the General Authority needed to seize private land, that the takings Clause that's in the Bill of Rights didn't presume a general power to seize property. I'm not sure that that's right. I think- I don't know why you would include a restriction on the seizure of private property if you didn't believe that the federal government had private property in the first instance, but I think the more- sort of more the first question would be does the president have Authority Under statutes to seize private property before you even get into the question of whether justices are willing to revisit the established practice of assuming that the federal government has constitutional authority to seize private property so long as it pays just compensation.  

Rosen: [00:40:33] Mark your thoughts on the eminent domain question and whether courts might push back?

Tushnet: [00:40:42] First of all, I myself am not persuaded by the originalist argument that has been rattling around for a while in part because even on many Originalist views, the way we understand the Constitution's meaning today is shaped by practices over the intervening years and the practice of federal governmental taking of property with compensation goes back now a long way, it doesn't go back to the beginning clear but it goes back quite a long way. And so I think the Constitution as properly construed today does authorize the government to seize property with compensation. The second, the next question is again as Sai keeps insisting and properly so, whether statutes authorize this particular form of seizure and my instinct on this again without having looked in great detail at all the rate of possible statutes is that if- so, let's suppose the project is the construction of a military Barracks, clearly a military construction project. If in order to make that Barracks safe the government has to seize property surrounding it to build a fence around the barracks, I think that it's an either necessary or sensible implication from the authority to build the barracks that you have authority to seize and compensate these property and compensate for the stuff that is either necessary or appropriate for building the barracks. And so we're back in the original problem: is building a fence military Construction authorised by 2808 or under any of the other statutes that Sai's referred to? 

Rosen: [00:43:15] Thank you for that and thank you both for a really careful and very Illuminating parsing of the complicated constitutional statutory and eminent domain questions. I want to step back now and just take a beat to note the obvious which is that some conservatives and Libertarians are expressing concern about the broad delegations of executive power that the court has upheld in the 20th century and if courts were to uphold this one there might be calls for reform to have Congress reassert its constitutional Authority and to rein in executive emergency power. Sai what kind of reforms are on the table? And which ones do you think might be most convincing?

Prakash: [00:44:01] Well, I- you know, it's hard to say what reforms the members of Congress are actually contemplating. I think right now the members of Congress are really just reacting to whatever the president is saying and tweeting and what he'll actually end up doing but I think one reform that doesn't quite deal with this situation, but would deal with many of the situations where the president is able to declare a national Emergency of various sorts and then thereby use executive- thereby use statutory Authority conferred by Congress is to say that the national Emergency Authority expires 60 days after Congress next meets thereby ensuring that it's temporary and thereby leaving the ultimate question to Congress that is to say rather than giving the president Authority that turns on his sole say so, his sole Declaration of a national Emergency. Congress can give him authority to deal with a problem in the short term and provide that you know that it lasts until Congress returns and maybe had 60 days there to give themselves some time to to wrap their heads around the issue, but that way it's not indefinite right, that way we don't have emergencies that last for years and we don't have situations where it's you know where the Declaration is really solely on the say-so of the president. I mean in effect it still would be but of course if Congress didn't agree with the Declaration it would be time-bound in a way that often is not true now. In other words, you know, if the president's able to use this Authority he's able to use it indefinitely right because there's no restriction, time restriction placed on his ability to transfer from funds from one account to another.

Rosen: [00:45:47] Thank you for that. Mark I'll ask you first, do you think reforms are necessary or do believe that broad executive Authority is consistent with your vision of the constitution for the reasons you began by describing? And then if Congress were to adopt reforms to rein in emergency executive power, which ones do you think might be worth considering?

Tushnet: [00:46:10] I think it's essentially impossible to describe in advance all the types of emergencies that might arise just because legislative imagination is limited and legislative time is limited. Think about any disaster science fiction movie where there's a Geo Storm or something like that. It's very hard to figure out or to get congress's attention to enact a statute that would specify well yes, you can declare it a national Emergency if there's a Geo Storm so substantively I think it's really hard to apply- to identify all the possible emergencies that there might be. The national emergencies act does try a quasi procedural mechanism. Turns out that under current law the mechanism is unconstitutional. Sai's suggestion of time-limited declarations is another procedural device. I am skeptical about whether that could work. The thing that immediately comes to mind is President declares an emergency which by this statute would expire after 60 days. After Congress meets Congress meets and is gridlocked on the problem, doesn't affirmatively do anything one way or the other and the President says well the problem still here, I'm going to declare a new emergency and I now have 60 more days to see if Congress can do something and so on. I'm just- these procedural mechanisms ultimately rest on a hopeful vision of how possible politicians would behave under the circumstances and I am not as or sufficiently hopeful to think that these procedural mechanisms would actually work. So my bottom line is not that I'm enthusiastic about the idea of expansive executive Authority. I am not but rather I think my position is that I'm resigned to the fact that we're extremely likely to have to live with a system in which the executive does have extremely expensive authority. 

Rosen: [00:49:02] Well, thank you for that note of resigned pessimism, which is a bracing way to conclude this really extremely sophisticated and helpful discussion of the complexities of the statutory and constitutional questions. It's time now for closing arguments. So as intensely and succinctly as possible I will ask you to sum up for our wonderful and devoted and closely listening We the People listeners the following question: the president issues a Declaration of national Emergency to build the wall. Would that violate Federal statutes or the Constitution? And will begin with Sai. 

Prakash: [00:49:42] Well, it's been great to be here with you and Mark, Jeff. I guess I would start by saying the jury is still out. I think the way to think about it is not to jump to a conclusion that he can or can't do it based on one's General views of the president or one's General views about a wall. I think it's a difficult statutory question as both Mark and I have emphasized and it turns on I think at least three statutes and I think it turns on how those statutes have been implemented. And you know, I think to answer that question you'd want to see the arguments being made by Administration lawyers. You want to see the practices, and so I think it's it's premature to say that he can do it, it's premature to say you can't. Which is not, your not kind of definitive answer that people, that many people will appreciate but I think it's the right answer. 

Rosen: [00:50:37] Thank you very much for that and Mark the last word is to you. If the president were to issue a declaration of national Emergency to build a wall, would it violate Federal statutes or the Constitution? 

Tushnet: [00:50:50] I would distinguish between two ways of answering that question. The first would be, would a court find that there was a violation of the statutes or the Constitution? On the first, would a court find a violation of the statute. I think it is a genuinely difficult question. My intuition / instinct or skepticism leads me to think that they would not find it to violate the statute. They find some way to find it statutorily authorized and even more strongly, I think they would find that the action if authorized was constitutionally permissible. The other way of thinking about it though is that it is up to We the People to decide whether the action is statutorily authorized or constitutionally permissible and they're- in another sense I'd invoke the phrase Sai introduced, I think the jury is out. That is if the president took this action there would be some sort of political response and that response might be a judgment of the people manifested in polls and ultimately in elections about- that the action was impermissible. I myself, I'm much more interested in that second kind of, that second path to thinking about whether something is constitutionally permissible or not than the judicial path, but again on both of them really. I think the jury would be out for quite a while.  

Rosen: [00:52:52] Thank you so much Sai Prakash and Mark Tushnet for a truly Illuminating discussion about a deeply complicated and Incredibly important constitutional and statutory question. That was a wonderfully appropriate call on We the People for We the People to make up our own minds about the constitutionality of central questions of our public life. We cannot do that unless we educate ourselves about the complexity of those questions and that is exactly what you Mark and Sai have helped us do in the highest tradition of we the people as Justice Brandeis said quoting Isaiah, come let us reason together. You have educated us and allowed us to be guided by reason in the process mark. Sai, Mark, thank you so much for joining. 

Mark Tushnet: [00:53:36] You're welcome. 

Sai Prakash: [00:53:37] Thanks guys.

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