Trump Can Declare Emergency, Or Get Funding Anyway

Trump Can Declare Emergency, Or Get Funding Anyway; Strong Legal Authority for Declaration, Or For Using Existing Statutes  to combat block drug smuggling corridors or other issues

WASHINGTON, D.C.  (February 5, 2019) – Regardless of what the political consequences might be, it appears that President Donald Trump does have the legal authority, under the 1976 National Emergencies Act [50 U.S.C. §§ 1601-1651], to declare an emergency to obtain funding for his wall, although he reportedly may then face a resolution by the House and Senate, as provided for in the statute, to challenge his action.

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On the other hand, the impartial and authoritative Congressional Research Service [CRS] has determined that he can obtain funding for the wall without going to Congress, and without declaring an emergency; a move which would at least temporarily avoid a direct conflict with Congress, suggests public interest law professor John Banzhaf.

The authority for such a move has very recently been provided by the CRS, notes Banzhaf.  The agency reported:

"A separate emergency military construction statute may also provide the President with certain limited authorities to construct barriers along the border without declaring a national emergency.

10 U.S.C. § 2803 (Section 2803) provides that the Secretary of Defense "may carry out a military construction project not otherwise authorized by law" upon determining that:

(1) "the project is vital to the national security or to the protection of health, safety, or the quality of the environment," and

(2) "the requirement for the project is so urgent that" deferring the project "would be inconsistent with national security or the protection of health, safety, or environmental quality."

"10 U.S.C. § 284 (Section 284) provides that the Secretary of Defense 'may provide support for the counterdrug activities or activities to counter transnational organized crime' of any law enforcement agency, including through the '[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.' Use of Section 284 would not require a declaration of a national emergency under the NEA."

Both statutes have built-in limitations, and a invocation of either or both statutes to help fund a border wall would, of course, be challenged as not being based upon a true emergency.

But Trump has maintained, even before he was elected, and frequently ever since, that a border wall is "vital to the national security."

It was "so urgent," he maintained, that he argued frequently that it warranted shutting down the government.

Similarly, he has steadfastly maintained that would help to "block drug smuggling corridors across international boundaries."

Although either rationale would be questioned by opponents, courts have traditionally been very deferential to determinations made by presidents regarding issues of national security and drug smuggling.

It's also unclear who might have legal standing to challenge Trump.

As CNN reported, its legal analyst Jeffrey Toobin said that "if Trump tries it, 'it is quite possible that the president legally could get away with it' given the fact that it is unclear who would have the standing to sue in that case."

For example, courts may well question whether a rancher whose land is being taken under eminent domain for a wall would have legal standing to contest in court not only the amount of compensation he is entitled to, but also the legality of the entire project as ordered by any president himself.

While some have suggested that, under the Azar decision, the House of Representatives might have legal standing to challenge Trump's actions, that seems doubtful, suggests Banzhaf.

The Azar decision, which held that the House of Representatives as an entity had legal standing to pursue constitutional claims against Obama, also held that the House did not have standing to challenge "the implementation of a statute, not adherence to any specific constitutional requirement."

Similarly, it may seem highly inappropriate for a single judge somewhere in the U.S., chosen by opponents of the wall because of his leanings and prior decisions, to second guess any president on "vital" matters of "national security," and to issue an injunction halting the entire project based upon his own views.

In short, a new report by the CRS not only suggests that the president could obtain funding for his wall by declaring an emergency or by using other existing statutory authority; it provides a virtual road map not only for him, but also for those who wish to challenge him, says Banzhaf.


Professor of Public Interest Law

George Washington University Law School,

FAMRI Dr. William Cahan Distinguished Professor,

Fellow, World Technology Network,

Founder, Action on Smoking and Health (ASH),

2000 H Street, NW, Wash, DC 20052, USA

(202) 994-7229 // (703) 527-8418  @profbanzhaf