Various Border Wall Prototypes as they take shape during the Wall Prototype Construction Project near the Otay Mesa Port of Entry.
Ground views of different Border Wall Prototypes as they take shape during the Wall Prototype Construction Project near the Otay Mesa Port of Entry. Photo by: Mani Albrecht, U.S. Customs and Border Protection.

President Donald Trump has suggested that he has the power to declare a national emergency and build a border wall with or without Congress — and he might be right.

Democrats’ opposition to President Trump’s request for $5 billion to construct a wall on the southern border has resulted in a government shutdown that is now stretching into its third week. Declaring a national emergency and building it anyway could allow Trump a way out of the impasse.

The Government Shutdown Fight Explained

Presidential Emergency Powers and the Wall

There’s a non-trivial legal argument that under emergency authorities granted to the President by Congress President Trump could unilaterally order the construction of a wall, even in the absence of an explicit appropriation from Congress. Still, the President’s ability to invoke these laws is not clear-cut and would surely face legal challenges.

There are at least two relevant statutes on which the Trump Administration could rest a case for his authority to use emergency powers to build a wall:

  • Under a law passed by Congress in 1986, in the event of a Presidential declaration of a national emergency under the National Emergencies Act of 1976 (NEA), the Administration is permitted to reallocate resources from the Army Corps of Engineers 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.”
  • Another law gives the President, after declaring a national emergency that requires the use of the armed forces, broad latitude to reassign funds appropriated by Congress for military construction projects to other projects “not otherwise authorized by law that are necessary to support such use of the armed forces.”

Both of these statutes require that the President declare a national emergency under the 1976 National Emergencies Act (NEA). But, the bar for doing so is not all that high according to Bobby Chesney, a law professor at the University of Texas. “If President Trump wishes to state that the border is in a state of disarray or exposure such that it constitutes a national emergency under the NEA, he is pretty much free to do so,” Chesney wrote in a post on Lawfare.

Not a Slam Dunk

While the Administration can certainly make a plausible case for the President’s legal authority to use emergency powers to build the wall, it’s not a slam dunk.

The President’s authority to reassign Army Corps of Engineers resources is limited to civil works projects that Congress has previously authorized. Congress has not explicitly approved a barrier covering the entire border. Still, Congress has authorized the military to construct “roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” The Trump administration could argue that the border wall falls under the military’s authority to build fencing for the purposes of drug interdiction.

The statute permitting reassignment of military construction funds applies only to a declaration of a national emergency “that requires use of the armed forces.” The statute allowing the use of Army Corps of Engineers resources is a bit broader, allowing emergencies that “may require” the armed forces. President Trump did order troops to the border last year in a support role, so there’s precedent for this.

Some argue that border security mission runs afoul of the Posse Comitatus Act, which places limits on the extent to which the military can be used for domestic law enforcement. For example, the President could not deploy the Army to round up drug dealers. But, he clearly could deploy the Army to stop an invading military force.

Can President Trump use the military to stop migrants from crossing into the country illegally? Securing the border falls into a sort of gray area, which is why the military was confined to a support role when it was deployed to the border last year. Stil, Presidents have pushed the envelope of what the military is allowed to do further than this in the past. Even if the armed forces are only “required” in a support role it’s fair to argue that this is enough to satisfy the statute. When Congress passed these laws, it likely had things other than border walls in mind. Nevertheless, the Trump Administration can reasonably argue that they apply here.

Courts are generally reluctant to second guess the President’s national security judgements. Recent court battles over other Trump initiatives give little reason to believe this will change. In the case of President Trump’s travel ban, after the administration made some revisions to address due process and other concerns, the Supreme Court upheld it in the end, specifically citing the Judiciary’s general deference to Presidential authority over national security matters. “The Executive’s evaluation of the underlying facts is entitled to appropriate weight, particularly in the context of litigation involving ‘sensitive and weighty interests of national security and foreign affairs,’” Chief Justice John Roberts wrote in the court’s opinion.

Why the Supreme Court Upheld President Trump’s Travel Ban

The Bottom Line

There’s no guarantee that declaring an emergency resolves the shutdown. For example, Democrats might insist on a provision in any funding package that explicitly prohibits him from using appropriated funds for a border wall. Setting that aside, declaring a national emergency to build a wall is not explicitly within the scope of the President’s powers; but, it’s not clearly outside of them either. Although there are legal obstacles, they are not necessarily insurmountable. Whatever happens, if President Trump choses to go this route, it will be up to the courts to sort it out.

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