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Perhaps because of his long-standing NeverTrump bias, David French’s latest essay in National Review (“No, Trump Can’t Use an Emergency Declaration To Build a Wall”) really bolloxed the legal analysis surrounding President Trump’s authority to build a wall upon declaration of a national emergency. So instead of Trump’s trial balloon being “a lawless abuse of power that will almost certainly be blocked by the courts,” as French claims, the Supreme Court would most certainly uphold the president’s exercise of power conferred on him by the Congress, should he elect to exercise it.
French begins with a straw man, rebutting an argument that Trump himself has not made, namely, that the president has inherent authority of the sort Harry Truman attempted to exercise during the Korean War to nationalize the steel industry during a labor strike. The Supreme Court rejected Truman’s assertion of inherent authority in Youngstown Sheet & Tube Co. v. Sawyer (1952), noting there was no specific statute authorizing the president’s actions. But here, there are statutes at play, which make the whole first part of French’s argument beside the point.
French does eventually turn to these statutes, but even here, he misconstrues their meaning and ignores a key piece of statutory authority that Congress itself has provided. Even the liberal Brennan Center for Justice and the New York Times have acknowledged that those statutes give the president the authority he needs to direct existing appropriations toward construction of a border security wall, once he has declared a national emergency.
First there is section 201 of the National Emergencies Act of 1976. Contrary to the claim made by the leader of the “Impeach Trump” crowd in the U.S. House, Representative Adam Schiff, that the president has no authority to declare a national emergency, this statute specifically authorizes him to do so. And it is an authority that has been exercised by every President since the law’s passage. President Bush exercised it in the wake of 9/11, for example, and President Obama used the statute to declare a national emergency in 2009 in response to a swine flu outbreak.
The declaration of a national emergency by the president then triggers a host of additional powers conferred by law. Most significant among them for the present dispute is 33 U.S.C. § 2293, which allows the secretary of defense to redirect funds from any existing military construction project and apply them “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,” as long as the national emergency “requires or may require use of the Armed Forces.”
French rightly claims that this provision allows for the redirection of funds only to projects that are both “authorized” and “essential,” but then erroneously claims that “A new or expanded border barrier has not been authorized by any lawful process.” That is simply not true.
Congress did authorize construction of a wall covering between 700 and 835 miles of the 1,954-mile U.S.-Mexico border when it passed the Secure Fence Act of 2006 by large, bipartisan majorities. The vote in the House was 283 to 138, with 64 Democrats supporting the measure. The vote in the Senate was even more lopsided: 80-19, with “yea” votes from 25 Democrat Senators, including Chuck Schumer, Joe Biden, Hillary Clinton, and Barack Obama. And President Bush signed the bill into law.
By the time President Obama put a freeze on the fence project shortly after taking office in 2009, only 580 miles of fence had been completed. Of that, about 300 miles or so is “vehicle barrier fencing” , which does not meet the statutory requirement for “reinforced fencing” capable of carrying out the statutory mandate “to prevent unlawful entry by aliens into the United States.” At the very least, then, another 400 to 500 miles or so of border fence (new or upgraded to the statutory standard) has already been authorized.
A second statute, 10 U.S.C. § 284, expressly gives the secretary of defense the authority to “provide support for the counterdrug activities or activities to counter transnational organized crime of any other” federal, state, local, or tribal governmental agency by, among other things, “Construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” French doesn’t mention that statute, but it clearly authorizes “fences . . . to block drug smuggling corridors across international boundaries of the United States.”
Even without such authorizations, another statute triggered by a declaration of national emergency is 10 U.S.C. § 2808, which specifically authorizes the Secretary of Defense to “undertake military construction projects, not otherwise authorized by law,” as long as the national emergency “requires use of the armed forces,” and the construction projects “are necessary to support such use of the armed forces.”
With 800 active duty and 2,100 national guard troops already deployed to the border to deal with the growing crisis, and another 1,900 national guard troops authorized last April by then-Secretary of Defense James Mattis, it is evident that the president has already determined that border security operations “require” the use of the armed forces, a determination unlikely to be second-guessed by the Supreme Court. And it is equally unlikely that the Supreme Court would second-guess the determination that a wall is “necessary to support such use of the armed forces” in carrying out their border-security mission.
French at least cites this statute, but discounts it, claiming that the latter language “strongly implies that the funding would be reserved for projects that benefit the military.” (Emphasis his). French is mistaken. The authority here is for support of the mission (the “use of the armed forces”) that the military is required to undertake, not simply to support the military. If the president and the secretary of defense determine that securing the border requires use of the armed forces, and determine further that building a border fence is necessary to support that use of the military, that mission falls well within this statutory authority.
Some hyper-partisan lower court undoubtedly will disagree, but it is extremely unlikely the Supreme Court would second guess the commander-in-chief on such a matter.
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