The Law and Trump’s Wall

President Donald Trump will not get his wall. Legal challenges probably will prevail, and the courts will overturn Trump’s declaration. But even if that does not happen, the wall will not be built because justice moves slowly. Even if the courts do not rule the president exceeded his constitutional authority in declaring a national emergency to build his wall, litigation will run out the clock.

President Donald Trump at the omelette bar at Mar-a-Ago, February 16, 2019.

Trump, in his bumbling way, did not help his legal case. First, he talked about declaring a national emergency for months, falsely claiming drugs and dangerous criminals were streaming across the border. The courts may wonder why such a serious problem was addressed in such a leisurely fashion. Second, Trump undermined the assertion of an emergency when, in his Rose Garden announcement, he said, “I could do the wall over a longer period to time. I didn’t need to do this, but I’d rather do it much faster.” That does not exactly convey a sense of urgency. Third, his decision to leave immediately after the announcement for Mar-a-Lago and reports of him playing golf over the weekend suggests the Republic is not exactly in peril at the southern border. If it were, would not the president remain in Washington to monitor the situation?

Even if Trump had done everything right, he would probably lose this battle on constitutional grounds. Democrats in Congress will bring suit to overturn the emergency, but the courts may rule that either members of Congress do not have standing to sue or that Congress has the remedy to fix the problem. Trump’s emergency powers, after all, derive from a 1976 law that gives Congress the right to review presidential declarations. The courts may decline to interfere in a dispute between the executive and legislative branches in which the legislative branch refuses to utilize its available powers. Or, the courts may say to Congress: If you do not like the law, change it!

But, if Congress does not have standing, others may satisfy the legal requirements. Contractors, for example, who will suffer if Trump shifts funds from appropriated projects to the wall will be able to demonstrate monetary injury. Similarly, owners of private property along the border may be able to challenge the federal government’s use of eminent domain to seize their land for building the wall.

Trump’s declaration of emergency powers involves two questions. One, is there a crisis at the border, and, two, who appropriates money?  On the first, Congress delegated to the president the power to declare an emergency. Objectively, there is no emergency at the border: Illegal entries at the southern border are down; most undocumented immigrants are people who overstayed their visas; and most human trafficking and drug smuggling occur at ports of entry. But, while the declaration clearly is frivolous, the courts traditionally have deferred to presidents who declare emergencies. 

Congress controls the appropriation of money, not the president.

The second question goes to the heart of the Constitution: Who controls spending? Article One, Section 9, Clause 7 of the Constitution is clear: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Given that Congress has the power of the purse, the president, even in a national emergency, must find a statute in which Congress authorizes the spending of money. Congress has approved a bill to allow the president to undertake military projects “necessary to support… the armed forces.” However, it is not clear that using funds previously appropriated for different military projects to support the building of a wall fits the criteria of this law since the military does not have domestic law enforcement powers to patrol the border. There is another bill that allows the president to divert funds from one project to another “authorized… for [projects] essential to the national defense.” The problem here is that Congress has not “authorized” any new sections of the wall and Trump would be hard pressed to prove the project is “essential for national defense.”

The last point is critical. Courts traditionally defer to the executive when Congress has authorized action. In this case, Congress has authorized presidential declarations of national emergency. But, courts typically invalidate presidential actions that Congress has prohibited. Last week, Congress approved spending $1.375 billion on a physical barrier at the border. If Trump were to allocate more money — and he wants to spend roughly $8 billion — he would be defying the will of the legislative branch.

President Harry Truman

There is at least one Supreme Court case on limiting presidential power that appears relevant. During the Korean War, the high court rebuffed President Harry Truman’s attempt to seize control of the nation’s steel mills when a labor action threatened to stop production. The Supreme Court held the president had no authority to seize private property without express congressional authorization. In the Youngstown case, no one disputed that there was a wartime emergency and that a stoppage in steel production would harm the war effort. Still, the Supreme Court ruled the president could not act without the approval of Congress. The Youngstown ruling clearly presents a precedent for overturning Trump’s emergency declaration as building the wall would require seizing property through eminent domain and without congressional approval. 

Democrats are right in labeling Trump’s declaration an unconstitutional abuse of presidential power. “This is plainly a power grab by a disappointed president, who has gone outside the bounds of the law to try to get what he failed to achieve in the constitutional legislative process,” Speaker Nancy Pelosi of California and Senator Chuck Schumer of New York, the Senate minority leader, said in a joint statement.

Democrats in Congress, private property owners, Native Americans living along the border, environmental groups, several states, and other interested parties will bring suits against the Trump administration to stop the wall. It will not be built, which probably is fine with Trump. After all, his ranting and raving about immigration is red meat to rile his base. If the wall were built, what would he have left to entice his followers?

Posted February 19, 2019

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