Can the president build the wall by declaring an emergency?

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Can the president build the wall by declaring an emergency?

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.

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.