Trump Can Fund Wall Using NEA Powers Without Declaring Emergency

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Two Statutes Let Him Act Unilaterally Using NEA, But With Some Limitations

WASHINGTON, D.C.  (January 29, 2019) –  The President has threatened to declare a national emergency in order construct a wall of some kind along our southern border – a move which has been widely discussed and criticized, but one which he apparently could take under the National Emergencies Act [NEA].


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But a rarely mentioned alternative, one not subject to the kind of legal analysis as an action under the NEA, would be for the President to act under several existing statutes – a move which would not be subject to the NEA’s congressional termination provision since it does not require a declaration of any emergency.

The authority for such a move has very recently been provided by the impartial and highly respected Congressional Research Service, notes public interest law professor John Banzhaf.

It said:

“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 NEA statutes have built-in limitations, and a invocation of either or both statutes to help fund a border wall would, of course, be challenged.

But President Donald 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” that he said 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.

Indeed, 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.

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 NEA statutory authority; it provides a virtual road map not only for him, but also for those who wish to challenge it, says Banzhaf.  @profbanzhaf

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