While CNN and Dems like Adam Schiff are bloviating (miss you O’Reilly!) about how President Trump does not have the legal authority to build the wall, a score of true legal scholars are saying he does.
First, here’s CNN and Schiff with their pontificating:
And here's what the experts have to say:
From NY Mag:
In the 20th century, Congress regularly gave presidents a wide variety of powers deemed necessary to executive functions during a national emergency, real or contrived. Such emergencies were, among other things, the legal basis for America’s undeclared wars in Korea and Vietnam. In order to regularize these incidents and provide for their termination (there were at the time 470 declarations theoretically still in force), Congress passed a National Emergencies Act in 1976. As the Wall Street Journalexplains, once a president declares an emergency, all sorts of expanded powers may become available:What Trump has in mind are two statutes that allow redirection of military construction funds during a declared national emergency. There are all sorts of questions as to whether building a border wall is actually a military construction project, and additional questions about the sufficiency of any presidential power to declare eminent domain over private property needed for a border wall. But no one doubts that Trump can make the initial declaration whenever he wants. And barring some congressional action to veto or terminate the declaration (which would require a two-thirds votes in both Houses), the only thing restraining him might be the courts, which have traditionally been very lenient in affording the president broad emergency powers. It’s not even clear who, if anyone, would have legal standing to challenge such a declaration with a lawsuit.
The National Emergencies Act doesn’t outline specific powers. Instead, those are laid out in hundreds of specific statutes that give the president extra leeway in a declared emergency. For instance, the International Emergency Economic Powers Act authorizes the president to block financial transactions or freeze assets in response to foreign threats.
In November, for example, Mr. Trump declared that Nicaraguan President Daniel Ortega’s campaign to suppress political opposition constituted such a threat, and he froze the assets of individuals involved in stifling protests against the Ortega regime.
Most national emergencies have been similarly narrow, such as a 2001 declaration prohibiting the importation of rough diamonds from Sierra Leone, where they were used to fund a brutal civil war. That declaration was revoked in 2004 as the war ended.
An exception came three days after the Sept. 11, 2001, terrorist attacks, when President Bush declared a national emergency that has been renewed ever since, most recently by Mr. Trump.
And from Breitbart:
The White House can use unspent funds to build a wall if President Donald Trump declares a national emergency and fends off various lawsuits, say lawyers cited in media reports.
The New York Times reported:
The Trump administration could point to two laws and say they allow officials to proceed with building a border wall without first obtaining explicit authorization and appropriations from Congress, according to Elizabeth Goitein, who oversaw the Brennan Center’s study and is a co-director of its Liberty and National Security Program.
One of the laws permits the secretary of the Army to halt Army civil works projects during a presidentially declared emergency and instead direct troops and other resources to help construct “authorized civil works, military construction and civil defense projects that are essential to the national defense.”
Another law permits the secretary of defense, in an emergency, to begin military construction projects “not otherwise authorized by law that are necessary to support such use of the armed forces,” using funds that Congress had appropriated for military construction purposes that have not yet been earmarked for specific projects.
I think that it’s possible that the president could declare a national emergency and then rely on authority Congress has historically granted for exigencies to free up some funds to support constructing a barrier along the border,” William Banks, a Syracuse University law professor and the author of the 1994 book National Security Law and the Power of the Purse, told the New York Times.
And from the Wall Street Journal:
Currently, $13.3 billion in the Pentagon budget may be available, according to a congressional aide, enough to cover the $5 billion that Mr. Trump is seeking for the border wall. That would have to be diverted from projects such as military housing that Congress previously authorized.
Steve Vladeck, a law professor at the University of Texas at Austin, said that without a statutory definition of “emergency,” courts are unlikely to second-guess the president’s judgment on that. The National Emergencies Act envisions that political checks, rather than litigation, will prevent abuse of executive authority, Mr. Vladeck said.
And from the LA Times:
Can Trump declare a national emergency?
Legal experts say the act gives the president the power to declare a national emergency. But the act does not require presidents to prove a crisis exists to declare an emergency — it’s at their sole discretion.
Congress can terminate a declared emergency, but it requires a two-thirds majority in both chambers, according to Loyola law professor Jessica A. Levinson.
Could Trump use government funds to build a wall during a national emergency?
It’s possible, but would likely be challenged in court, say legal experts.
Should he declare a national emergency, Trump would not have free-floating powers, said Kim Lane Scheppele, a legal scholar and professor at Princeton University's Center for Human Values. A president “can only make use of specific powers that Congress has put into law to be used precisely when the president declares an emergency,” she said.
When a president declares a national emergency, scores of extraordinary laws become available. The Brennan Center for Justice lists 136 special provisions.
“Once he declares an emergency, he must specify which emergency powers he is using — and he’s limited to those already in the law,” Scheppele said.
One provision says that after an emergency declaration, the “Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.”
Scheppele said if Trump “continues to make the case that the wall is necessary to prevent terrorists from entering the U.S., then he may be able to make the case that building a wall has a military purpose and he has a freer hand.”
“Trump might test it and wait for his decision to be challenged by Congress or in the courts,” she said.
TELL NANCY PELOSI IT'S TIME TO BUILD THE WALL:
Don't ya just love it?