Report: Trump can build wall without declaring emergency

The CRS “legal sidebar” outlines alternative paths for the president, who has been considering tapping the National Emergencies Act.

“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,” said a new analysis from George Washington University Law School Professor John F. Banzhaf.

The administration has said that there is enough legal precedent for Trump to act under the National Emergencies Act, and Banzhaf’s analysis agrees.

[Also read: House, Senate committee is stacked against Trump’s border wall]

Banzhaf pointed out two legal provisions in the CRS report on emergency wall funding that could be the easiest way for Trump to bypass Congress and fulfill his key agenda goal of completing the border wall.

“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,” said Banzhaf’s analysis.

One allows the Pentagon to fund a construction project not previously approved by Congress if national security is at stake. Another lets the Pentagon work with civilian authorities to fight drugs.

Those provisions from the CRS report cited by Banzhaf:

• “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.”

Congressional officials have also looked into the alternative provisions and believe spending caps would kick in at about $1 billion, not the $5.7 billion he is seeking.

Both Banzhaf and CRS said that Trump would likely face legal challenges if he tapped the provisions.

CRS explained in its Jan. 10 report: “The president may cite these authorities either individually or in combination with [military construction under the National Emergencies Act] to support such construction. However, many of these authorities standing alone come with significant limitations concerning the types of authorized construction and the funds available for such construction.”