Democratic congressional leaders claim President Trump’s decision to declare a national emergency to spend additional money on a border wall is unlawful, with some even saying this maneuver looks more like a dictatorship than a democracy. On this matter, the Democrats are wrong. It was Congress that gave the president this power.
The Military Construction Codification Act of 1982 provides that the president can reallocate funds for military construction projects when he declares a national emergency “that requires use of the armed forces.”
One could argue a border wall isn’t a real emergency and that judges should stop the president. The problem is that judges historically have tried to not second-guess the president’s national security judgment for declaring a national emergency. Congress holds the real power here. If lawmakers believe a border wall is a “fake” emergency, they can vote to undo the decision. The National Emergencies Act of 1976 says that Congress can pass a joint resolution of termination to end such an emergency declaration.
A stronger argument against Trump’s declaration is that it does not require use of the armed forces. The president is likely to argue that he must use armed forces or else the problems he seeks to resolve with his declaration will continue, and so the use of military personnel is required. This question is likely to be a close call legally, and it’s hard to predict how judges will respond.
Other critics claim the Military Construction Codification Act violates the Constitution’s nondelegation doctrine, which prohibits Congress from delegating away its legislative power to the president. I strongly support the nondelegation doctrine, see my amicus brief in the pending Supreme Court case Gundy v. United States, but the statute invoked by the president does not violate that doctrine because the nondelegation doctrine only applies to rules of private conduct. As Justice Clarence Thomas, the strongest supporter of the nondelegation doctrine on the court, recognized in DOT v. Association of American Railroads (2014), "The core of the legislative power that the Framers sought to protect from consolidation with the executive is the power to make ‘law’ in the Blackstonian sense of generally applicable rules of private conduct."
Discretion given to the president over how the executive branch is run, or how appropriated money is spent, is merely allowing the head of the executive to exercise his default control over his subordinates. The very first appropriations bill put almost no limits on how the money would be spent outside of the department it was assigned to, and likewise this authorization by Congress is constitutional.
Another concern the president should be aware of concerns the use of eminent domain, the power of the government to seize property for a public use. Only Congress can authorize the president to seize property, and it certainly has not done so in this case. Two-thirds of the land along the border is owned by private individuals who may not want a border wall on their property. The president does not have the power, under the authority he has invoked so far, to take their land. He can, however, negotiate to buy their land with the newly available funds.
Aside from the present border wall dispute, people in both political parties have expressed fear that a future president could willy-nilly declare a national emergency on other priorities for which he can’t gain approval from the legislature, like guns or climate change. No doubt a president could declare such a national emergency, but the additional powers given to the president by declaring a national emergency are limited. Even with a national emergency declaration, there is no statute giving the president the power to seize guns or other private property. Even if there were a statute that said that, it would violate other constitutional provisions, such as the Due Process Clause or the Takings Clause.
Contrary to Democrats’ claims, this national emergency declaration does appear to be lawful. That doesn’t mean it’s good public policy, good precedent, or that it stands in the way of Congress simply reversing the national security declaration, as it has the power to do. But Democrats should think twice about hastily declaring the president’s action unlawful or unconstitutional. Doing so risks misinforming Americans about critical decisions made by their representatives and further eroding their trust in our system.
Originally published at the Washington Examiner.