Legally, Trump Can Probably Declare A National Emergency

Trump’s ability to declare a national emergency  is probably Legal and Effective; Members of Congress Have Nobody But Themselves to Blame If Trump Succeeds 

WASHINGTON, D.C.  (February 15, 2019) –  Many in Congress are condemning President Donald Trump’s just announced decision to declare a national emergency to help build a wall on the southern border, but such a declaration would apparently be both legal and effective, at least according to the respected and impartial Congressional Research Service [CRS] and other legal scholars.

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Moreover, any blame for such an action must be shared by current and former members of the Congress who passed legislation not only giving presidents the statutory authority to declare a national emergency without any standards, but also providing a largely ineffective termination mechanism to prevent the abuse of the power, argues public interest law professor John Banzhaf.

Indeed, the very existence of the termination mechanism may make is even less likely that any court challenge to his action will be successful, especially in the long run, and assuming that the courts hold that someone has legal standing to challenge his decision, adds Banzhaf.

In a major report issued this year, the CRS concluded that, although it "would raise a variety of novel legal issues," "the President may seek to avail himself of broader authorities by declaring a 'national emergency' under the National Emergencies Act (NEA). [50 U.S.C. §§1601-1651]  Such a declaration could enable the President to invoke certain emergency military construction authorities established by the Military Construction Codification Act (MCCA)." [10 U.S.C. §§ 2801-2885]

The CRS reported more specifically that "Upon declaring a national emergency pursuant to the NEA, the President may invoke the emergency military construction authority set forth in 10 U.S.C. § 2808 (Section 2808).  . . .  Section 2808 provides that upon the President's declaration of a national emergency 'that requires use of the armed forces,' the Secretary of Defense may 'without regard to any other provision of law . . . undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces.'"

In this regard it should be noted that the President has already determined that events regarding the border "requires use of the armed forces."  Indeed, he has reportedly sent thousands of members of the armed forces to the border; an action which has not been successfully challenged, notes Banzhaf.

The CRS also advised that, although there may be certain limits, "several other statutes may provide the DOD with some authority to construct barriers along the border. The President may cite these authorities either individually or in combination with Section 2808 to support such construction."  Specifically mentioned are 33 U.S.C. § 2293, 10 U.S.C. § 2803, and 10 U.S.C. § 284.

In passing the NEA, Congress assured that any president has clear statutory authority - in addition to powers he probably has independently arising directly from the Constitution - to declare a national emergency.

Unfortunately, at least with the great wisdom of hindsight, the act places no limits or restrictions on a president's ability to make such a declaration.

Courts are likely - under what is called the Overton Park "no law to apply" rule - to be reluctant to even review, much less overturn, a presidential declaration that an emergency exists if Congress deliberately chose to provide no legal standards which a court can apply.

Courts might also be reluctant to review the action, as the CRS notes, on the grounds that it presented a non-justiciable political question.

The statute does, however, provide a mechanism whereby Congress can challenge any such declaration.  As the CRS noted, "national emergencies terminate . . .  if Congress enacts a joint resolution terminating the emergency (which would likely require the votes of two-thirds majorities in each house of Congress to override a presidential veto).

This, of course, is very unlikely to occur, suggests Banzhaf.

The presence of a clearly established mechanism by which Congress can terminate a presidential declaration of emergency may also make a court reluctant to create a new judicial remedy; reasoning that if Congress wished to also provide for judicial review of such determinations, it probably would have included an appropriate provision in addition to the congressional termination remedy.

The Justice Department has warned that any presidential declaration of emergency will immediately be challenged, probably in many different courts, as was his travel ban.

As with the travel ban, it is likely that some lower courts will issue temporary orders seeking to prevent it from going into effect.

But the U.S. Supreme Court, in Trump v. Hawaii, upheld the President's controversial decision to impose a travel ban, stressing that courts must give any presidential actions considerable deference, especially if they involve immigration and claims of national security - the very concepts which Trump has been stressing, notes Banzhaf.

The CRS analysis noted that the President has some authority under several statutes to reallocate money for possible use in building a wall, and that he can exercise it without even relying upon a declaration of emergency.

So, in what may seem like a replay of what occurred when the President first sought to impose a travel ban, a declaration of an emergency is likely to be challenged in many different courts simultaneously.

Because the challengers can and will select for their challenges courts and circuits most likely to be sympathetic to the cause, at least some judges will try to issue temporary restraining order and/or preliminary injunctions.

However, whether they will be effective nationwide, as they were with regard to the travel ban, or effective only in limited jurisdictions, remains to be seen.

Moreover, in view of the Hawaii decision, appellate courts may be less likely to uphold such lower court rulings.

In the end, Trump's best chance of winning will probably be in the Supreme Court, 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