President Trump’s decision to declare a national emergency to build his border wall made everybody on Twitter an instant expert on the 1976 National Emergencies Act. But it would be wise for readers to view with skepticism anybody who tries to confidently assert whether or not Trump’s action was legal. Instead, everybody needs to take a step back and realize that the legal arguments surrounding the action are not a slam dunk for either side.
I have already laid out why I believe the emergency declaration, if successfully deployed, would set a dangerous precedent that will come back to haunt conservatives who care about limiting the power of the federal government. But that’s a different question from whether it could be legally justified by current statutes. And the second question is much less clear to me.
One thing I have learned over the years, after having covered a number of prominent court battles, is that legal arguments are usually much more complicated than they seem at first blush. Even lawyers you see weighing in on social media, in op-eds, or on TV, are making quick judgments based on only a cursory reading of relevant statutes. The amount of research needed to write an op-ed or to prepare for a television appearance is significantly less extensive than what is required to actually launch a lawsuit or defend against one. In the coming weeks and months, lots of smart lawyers will be devoting a substantial amount of time to crafting arguments on both sides of this question. And those arguments are going to be refined as the lawsuit works its way up the legal food chain, the matter gets briefed, and federal judges start to weigh in. One of the reasons that the Supreme Court typically waits to hear cases until it they go through several rounds of litigation is that they like to see arguments when they’ve been fully formed.
In this case, those arguing that Trump has the power see the law as pretty straightforward. Congress, through the emergencies act they passed in 1976, gave the president broad power to declare national emergencies — a power that has been invoked 58 times. They also point to statutes such as this one, which says that in the event of an emergency the president can “apply the resources of the Department of the Army’s civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.”
Even some people who generally are against aggressive use of executive power have argued that Congress is to blame for giving the executive so much discretion and for not asserting itself over the decades. George Washington University Law Professor Jonathan Turley, for instance, wrote, “Congress expressly gave presidents the authority to declare such emergencies and act unilaterally.”
However, there are also legal scholars who have given strong reasons to doubt that such an assertion of executive power by Trump is legal. Here, we have a case in which the Congress, on multiple occasions and after much negotiation, explicitly refused to fund this specific project, and Trump is trying to claim emergency powers to get what Congress refused to give him. George Mason University Professor Ilya Somin, for instance, has explained how there are multiple legal questions raised concerning not just the declaration and funding issue, but also whether Trump would have the authority to seize private property that gets in the way of building the wall. As he notes, the statute I cited above regarding the authorization of military construction projects specifies that it refers to an emergency that “requires or may require use of the Armed Forces.” It’s a stretch to argue that border enforcement requires the use of the armed forces, and the deployment of military domestically raises a whole other set of questions.
There is another school of thought, which is that regardless of whether Trump’s action should be ruled legal, that courts in the past have tended to be deferential to the executive when it comes to assertions of power, particularly as to the judgment call of what constitutes an emergency. But even there, the record is not totally clear. The Hoover Institution’s Adam White details why, “There is good reason to doubt that the justices will be so deferential to the Trump administration’s invocation of emergency powers.”
Given that legal experts are often wrong about how the justices are going to rule after oral arguments and that we’ve barely begun to learn how Justice Brett Kavanaugh will approach Supreme Court decisions, any sort of predictions about where this ends up in court are incredibly premature.
Again, whatever the legal questions, this has no bearing on the fact that politically, this is a terrible idea.
