His emergency powers aren’t broad enough to bypass Congress.
Let me begin by stating my policy preference up front. I strongly believe that our nation should bolster its border security, including by building a more effective and longer border wall. A better border barrier would represent a far more humane way of deterring desperate individuals and families from making the extraordinarily dangerous trek to the United States, would properly channel asylum seekers to ports of entry, and would ease the need for border detention facilities.
If you believe a nation can and should control who enters its borders, then border barriers are one part of a solution to the problem of illegal entry. But the wall is a symbol now. Democrats will not consent to constructing the founding promise of Trumpism, and Trump (for now, at least) won’t abandon his signature proposal.
So he’s floating the possibility of declaring a state of emergency, using a “military version” of eminent domain to seize private land along the border, and building the wall without congressional consent. This would be a serious mistake — a lawless abuse of power that would almost certainly be blocked by the courts (including by Trump-appointed judges). In the remote chance it passed legal review, his declaration would have malignant effects on the American constitutional structure. He would enable future presidents to wield vast powers at a whim, shaking the president loose from his constitutional bonds once and for all.
The legal analysis here is relatively simple. The president does not have the constitutional or statutory authority to unilaterally declare an emergency under these facts, seize private land, and spend money to build a wall. The constitutional question was settled during the Korean War. At the height of the conflict — when the United States was locked a grueling land conflict with hundreds of thousands of Chinese and North Korean troops — President Truman attempted to “take possession of and operate most of the nation’s steel mills” to avoid a strike by the United Steelworkers of America.
The necessity of steel to modern military operations is too obvious to require explanation, but the Supreme Court still blocked the president’s takeover. Justice Black, writing for the majority, declared that the president’s authority to act must derive from an “act of Congress or from the Constitution itself.” Since there was no specific enabling statute, Truman attempted to rely on inherent executive powers and his authority as commander-in-chief. The Court rejected his arguments:
We should be vigilant about controlling access to our country. I believe that more border barriers are an important aspect of border security. But words mean things, and the idea that a border wall is so “essential to the national defense” that it “may require the use of the Armed Forces” to deal with a national emergency is to stretch the plain meaning of the statute past the breaking point.
Critically, we cannot forget that in a time of peace, border security is a civilian function, and the penalties for unlawful crossing are matters for civilian law enforcement. Illegal entry is only a misdemeanor under federal law, and there are profound legal limits on the use of the armed forces in a law-enforcement capacity.
Make no mistake: If President Trump attempts to defy the Constitution and federal statutes to use the military to seize land and build a wall without proper congressional appropriation, he’ll commit a grave abuse of power. Fortunately, our system of checks and balances will likely intervene to stop his lawless project before it starts, but it is still the president’s principle job to preserve, protect, and defend the Constitution — not to expand the power of an increasingly imperial presidency. The wall needs to be built through the proper constitutional process or not at all.
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