Whenever President Obama abused his constitutionally granted authority I called him out on it, and I intend to do the same with President Trump. As I begin to write this article I am still unsure if President Trump has the constitutional authority to construct the border wall by declaring a national emergency. This is a very complex situation which was not contemplated by the framers of the Constitution. Hopefully I will have a conclusion when I’m done.
Mark Levin, who I greatly respect when it comes to constitutional issues, states emphatically that President Trump has the authority, in this interview that appeared in this Conservative News Service article
The president of the United States is trying to use his legitimate constitutional authority to undo this, to secure the border, and under the Constitution, he has the right to do so. Even more so, there’s a federal statute that was passed in 1976, long before he even flirted with politics. This statute was passed by an overwhelmingly Democrat Congress
But the president isn’t violating the Constitution. He’s not even violating the statute. He’s looking at the statute, he’s looking at the immigration laws – there’s an emergency provision in the immigration law, the Immigration and Naturalization Act – and he’s marrying the two up, which is what he’s supposed to do, because he’s getting advice from really smart lawyers in the White House Counsel’s office, at the Justice Department
We’re not talking about this president issuing an executive order, that, out of thin air, creates DACA. That’s not what this president’s doing. There was no statutory basis for DACA, and Obama admitted it. He wrote legislation out of thin air. He violated separation of powers. That’s not what Trump plans to do.
He is not alone in claiming that the National Emergencies Act of 1976 grants the president the authority. Here is a description from this Wikipedia article.
The Act authorized the President to activate emergency provisions of law via an emergency declaration on the conditions that the President specifies the provisions so activated and notifies Congress. An activation would expire if the President expressly terminated the emergency, or did not renew the emergency annually, or if each house of Congress passed a resolution terminating the emergency
for Congress to rescind a declared emergency, not only must they pass the joint resolution, but the President must sign the legislation. The Act also requires the President and executive agencies to maintain records of all orders and regulations that proceed from use of emergency authority, and to regularly report the cost incurred to Congress.
Here is a quote Brennan Center for Justice article titled A Guide to Emergency Powers and Their Use.
Unknown to most Americans, a vast set of laws gives the president greatly enhanced powers during emergencies. President Donald Trump’s threats to get funding for a wall along the border with Mexico by declaring a national emergency are not just posturing. The Brennan Center, building on previous research, has identified 136 statutory powers that may become available to the president upon declaration of a national emergency, including two that might offer some legal cover for his wall-building ambitions (10 U.S.C. 2808 (a) and 33 U.S.C. 2293 on our list below)
Many have stated that the Secure Fence Act of 2006, along with the National Emergencies Act, grants the president the authority. Here is a description from this Wikipedia article.
Authorizes the construction of hundreds of miles of additional fencing along our Southern border; Authorizes more vehicle barriers, checkpoints, and lighting to help prevent people from entering our country illegally; Authorizes the Department of Homeland Security to increase the use of advanced technology like cameras, satellites, and unmanned aerial vehicles to reinforce our infrastructure at the border
The Act was amended in 2007 to state
nothing in this paragraph shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location along an international border of the United States, if the Secretary determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border at such location.
Judge Napolitano, who I greatly respected until he recently became a rabid anti-Trumper, and abandoned his objectivity, had this to say in this article on Fox News
Now, back to the president’s wall. President Trump has no power to build a wall or a fence or a doghouse on private property without an express or implied congressional authorization to do so. The vast majority of the property in Texas on which he wants to build is private…We know from the plain wording of the Constitution and from history that all expenditures of money from the federal treasury and all federal use of private property must first be approved by Congress.
in 1976, Congress provided a definition — which, shortly thereafter, the courts refined — of a national emergency: the existence of events truly beyond the ordinary, wherein there is a palpable and immediate threat to lives, safety or property that cannot be addressed by the employment of ordinary government assets or the exercise of ordinary governmental powers. That is hardly the case today with the former Central American caravan in Mexico now settled in and housed by the Mexican government away from the border.
Judge Napolitano is very much wrong about the emergency on the border being over just because there is a break in the caravans.
I believe the conjunction of the National Emergencies Act and the Secure Fence Act allows President Trump to finish the security fencing authorized by the Secure Fence Act only, and to replace the sections authorized which are not up his standards, as expressed through his Secretary of Homeland Security. Democrats have claimed the fence authorized by that act is finished, however, what is built is way below the standards authorized, and most is not built. Without the Secure Fencing Act, I believe President Trump would not have the constitutional authority.
Presidents since FDR, who was the first president to declare an emergency without congress, have abused declarations of emergencies by acting without congressional approval. I believe the National Emergencies Act does not go far enough in cleaning up this abuse.