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.
