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Does the president have the legal authority to declare a crisis and build a border wall?

Does the president have the legal authority to declare a crisis and build a border wall?

The question may need to be answered some day

https://twitter.com/emmamurphyitv/status/1066772298068357121

There is little question that lawyers and law professors can argue on either side of this issue and make a convincing case. But here are some of the arguments Trump’s side will probably use if it comes down to that:

It’s likely that President Trump is looking at 10 U.S.C. § 284 for authority to build the wall. That allows the Department of Defense to support other agencies of the federal government to counter drug activity and transnational organized crime, using such means as “Construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”

Another law, 10 U.S.C. § 2808, allows the president to declare a national emergency and direct the U.S. military to undertake military construction projects using appropriated funds for military construction, including family housing, that have not already been obligated.

Ackerman [a Yale law professor who wrote an op-ed in the NY Times saying that Trump lacks the authority] compares declaring an emergency to build a border wall to President Harry Truman’s attempt to nationalize the steel industry in 1952. That effort was struck down by the Supreme Court. This comparison is ridiculous, because that case involved the president seizing control of private property (i.e. privately owned steel mills).

In contrast, the government has already purchased much of the land needed for the border wall.

Much more at the link, including:

My research did not isolate a particular legal standard for “a national emergency,” so it’s possible Trump’s critics could challenge his action in the courts as insufficient on that basis. There’s plenty of violence taking place on both sides of the border in connection with drug smuggling that Trump could cite to invoke the same justification used by Clinton and Bush.

If Trump is wrong, Congress, as Ackerman noted, would have “the right to repudiate it immediately.” Thus, the question of whether the situation at the border is an emergency is probably more of a political issue for the first two branches of government than it is a legal issue for the third branch.

Whether or not it should be a legal issue for the third branch, it probably will be one, if Trump ends up deciding that declaring a national emergency is the way to go for building the wall.

Why is opposing the border wall the hill the Democrats have chosen to fight on? It’s clear why it’s so important to Trump—it’s the linchpin of his campaign promises and he feels he must deliver. For the Democrats, it’s really a reverse of that same principle. Their biggest goal is to remove Trump now or at the very least to prevent his re-election. In fact, they might be more comfortable with the second than the first, because removing a president means they can’t campaign against him in 2020, and they see anti-Trumpism as a big, big motivator for voting Democratic.

But their opposition to the wall is multiply-determined. They think it makes them look compassionate, which will appeal to their constituents, who can then bask in the glow of their own compassion when they vote for Democrats. In addition, the Party sees illegal immigrants as ultimately leading to more Democratic voters.

Who will win the wall funding standoff? Michael Walsh believes it will be Trump:

…[T]he furloughed public servants are merely suffering delayed paychecks thanks to the Democrats’ refusal to accept the results of the 2016 election, and while the public has not been as deliberately inconvenienced as it was during the dog-in-the-manger Obama shutdown, its effects are nevertheless being felt at such points of intersection as the national parks. Still, life has gone on otherwise pretty much as before — and the longer the shutdown rolls on, the more easily the way we were can be forgotten.

So the longer Donald Trump wrangles with his two superannuated cartoon antagonists, Nancy Pelosi and Chuck Schumer, the stronger the president’s position becomes. This despite the Democrat Media’s insistence that the shutdown is a terrible thing, costing the lives of (as usual) untold women, children, and minorities.

He has a point, which is that so far the shutdown has mostly been a non-event, hyped by the press of course, but not affecting most people at all. It will get more visible as time goes on, though, and the government workers start not receiving paychecks.

However, there is a certain “boy who cried wolf” perception that may be starting to operate, which is that people become somewhat bored with these recurrent shutdowns because they seem like old stories. We’ve passed this way too many times before, and the empty theater aspects of the process become more and more apparent.

How many people see the shutdown that way? It’s not clear, but until recently, polls indicate that more people blame Trump for the shutdown than blame the Democrats:

Nearly half of voters, 47 percent, say Trump is mostly to blame for the shutdown, the poll shows, while another 5 percent point the finger at congressional Republicans. But just a third, 33 percent, blame Democrats in Congress.

The article doesn’t have a link to the poll, so I wasn’t able to see how the questions were phrased, which tends to be highly important in interpreting the meaning of polls. It was also conducted prior to the president’s speech on Tuesday, which makes it even less meaningful than usual.

In a quick search, I was unable to find any polls taken after Tuesday. But it’s only over time that this story will play out, and Trump’s only just begun to fight.

[Neo is a writer with degrees in law and family therapy, who blogs at the new neo.]

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Comments

Had an amusing thought about Democrat rhetoric on the wall … and pose it as a hypothetical question.

In 2021 or 2025, we’ll have a new president, possibly a Democrat. If Trump succeeds in building a wall, will the Democrats move to tear it down if/when they’re back in power? Seeings as it’s immoral and all?

    Subotai Bahadur in reply to MrE. | January 10, 2019 at 5:36 pm

    Absolutely, they will. Keep in mind that the Democrats believe that the election of Trump defeated what they thought would be the inauguration of a “Peoples Paradise”. They seek both revenge against the American people and to make up for lost time.

    Of course, if an Democrat from the current crop is elected it is a given that the Social Contract is dead and the Constitution, electoral means and legislative actions will not be considered binding by at least half of the population until a new Contract is established.

      alaskabob in reply to Subotai Bahadur. | January 10, 2019 at 8:21 pm

      I believe the Dems want to conclusively create the one-party state that is permanent and then will begin to curtail some immigration. As Rush noted…. the Dems need a country worth enough to steal from. At that time… the Far Left Trotskyites are the Mainstream Dems problem. Think of AOC as Chavez…

    SkyCaptain in reply to MrE. | January 10, 2019 at 5:43 pm

    The question I have is – why aren’t Chuck and Nancy crying out for removal the the current wall?

    Rhetorical question, I know. They’re not calling for because they know it is a non-starter, and their calling the wall immoral is a lie.

      My bet is if they did that, the jig would be up – there would be a major outcry from the people near the border wall that exists. That would flip the narrative on its head.

      They will bide their time.

“Nearly half of voters, 47 percent, say Trump is mostly to blame for the shutdown” where have I heard that percentage before, that’s right Romney when he ran for Pres used that percentage to describe a certain group of people.

Morning Sunshine | January 10, 2019 at 5:25 pm

I do blame Trump for the shutdown. Or, I guess to be more precise, I credit Trump for the shutdown. I do not see this as being a bad thing, to be honest. I wish he could control a bit more of what is not getting paid for
for example, I heard a story yesterday about small breweries not getting inspected so they cannot sell their adult beverages. Perfect. Why does the federal .gov need to inspect those anyway? Just make a “rule” that during a shutdown, certain regulatory things do not have to be done. In other words, get the job-killing, innovation-stopping government bureaucrats out of the picture.

    If someone drinks a beer from an unregulated brewery and dies, I don’t think anna navarro would file her nails during a discussion of that story. She’d be screaming about Trump the murderer, hair on fire, blood coming out from her… wherever. The hypocrisy of these people is beyond belief.

      Occasional Thinker in reply to CKYoung. | January 11, 2019 at 12:54 am

      I don’t think the BATF inspecting breweries has anything to do with health and sanitation standards, those are handled by the state and country where the brewery is physically located. The federal inspection would strictly be for tax purposes. One of the truly important federal functions (sarc).

    Think “The Jungle” and Sinclair Lewis when you question the need for food inspections.

      mailman in reply to perfesser33. | January 10, 2019 at 6:43 pm

      Or put it this way…businesses that sell dodgy food do not stay in business very long. The industry is literally self correcting!

      Colonel Travis in reply to perfesser33. | January 10, 2019 at 7:31 pm

      Sinclair Lewis’s book was full of lies. First, it wasn’t a nonfiction book that exposed the meat packing industry – it was a novel. And the stuff that shouldn’t have been fictionalized was fictionalized because Lewis was a socialist who wanted to see an overhaul, which is why he just used hearsay and his imagination instead of being a responsible writer. But “responsibility” and “leftism” are oil and water.

      I’ve read Congressional Ag committee hearing transcripts from that time and everyone is incredulous about the accusations of the Chicago stockyards. Members of the committee bring up specific instances in the book and they are all refuted.

      I do not understand why The Jungle is held up to a high standard. It should be used as an example to ridicule.

    Yup. News repeated yesterday by multiple Indiana outlets was about a small winery in Peru, IN that had planned to have their grand opening at the end of January, but now are “uncertain” about that since the Feds can’t OK their license.

    My first thought when I first heard about it…Why the f*** does the Fed have ANY control over THAT and not just the State?

Of course he has the power to declare an emergency and build the wall. If a federal judge rules he can not, the president needs to ignore the order and keep building the wall as the case makes it’s way to SCOTUS. If for some reason the SCOTUS can’t interpret the Constitution as written, then it’s either goodnight America or the legal citizens of this country will have some big decisions to make. The United States is the best country that has ever existed because of the Constitution. So great, that people risk death and break the law to get here, escaping countries with far inferior forms of government. Because they come illegally, with nothing invested in learning and knowing our Constitution, they support a political party (democrats) who do not want to follow our Constitution. democrats want to rule over the populace, they do not believe in a government for the people and made up by the people. The illegals are a tool in the democrat playbook to eventually rob American citizens of their rights.

Can’t the Army Corps of Engineers practice some of their engineering skills by building the wall? I mean, they can build a bridge in almost no time. Why not a simple wall? At least a temporary one in the critical areas that can be replaced with a permanent one after Congress is shamed into funding it.

    alaskabob in reply to windbag. | January 10, 2019 at 11:02 pm

    Wait until environmentalists claim the wall prevents the migration of the Mexican ant… just recently discovered and not fully studied.

Subotai Bahadur | January 10, 2019 at 5:51 pm

This was sent to me, and I throw it into the mix for consideration”

The McCarran-Walter Act, the Immigration and Nationality Act of 1952 allows for the – “suspension of entry or imposition of restrictions by the president, whenever the president finds that the entry of aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.”

Who was president when this was passed? Democrat – Harry Truman.

Who do you suppose last used this process? Democrat – Jimmy Carter, no less than 37 years ago, in 1979 to keep Iranians out of the United States. But Carter actually did more. He made ALL Iranian students, already in the United States, check in with the government. And then he deported a bunch of them. Seven thousand were found in violation of their visas and a total of 15,000 Iranians were forced to leave the USA in 1979.

Might I toss out the thought that tens of millions of illegal invaders whose presence is actually less legal than the 1979 Iranian students who were in this country originally legally could be subject to this already existing law that has already met muster with the courts?

Because I am not a nice person, I will suggest that the resources for immediate nationwide enforcement of the law just do not exist. It will have to be done sequentially. It would be tactically and strategically helpful if things were timed so that the illegal invaders would be swept towards the absolute sanctuary state of California as they fled.

Then, of course, it will take time to marshal the resources to deal with the numbers in California, and they could be left there to be cared for by the government of California for that time.

😉

    Wrathchilde in reply to Subotai Bahadur. | January 10, 2019 at 6:27 pm

    I totally agree. My original suggestion was to build the wall up to the CA border, and run out of funds. This would have the unfortunate effect of leaving CA as the only (relatively) unprotected border area and funneling the illegal alien invaders to where they are wanted.

    MajorWood in reply to Subotai Bahadur. | January 10, 2019 at 7:41 pm

    Yeah, wall 1 should be built across the CA and AZ/NV borders. Can probably make it a snow fence in the Sierras, for night vision ranging purposes. If we can get CA to collapse on themselves first, then dealing with the other stuff will be way easier. The other type of coyote will take car of those heading into OR.

    Focus deportation efforts in one area, take careful notes, then point out the reduction in government expenditures for various welfare programs. Maybe that will convince some people. (I know, I know the gubmint ain’t gonna give that money back, just use it for something else.)

The Constitution requires the President to conserve a republican form of government, “the People and our Posterity”‘s civil rights, which includes a right to life, liberty, and the pursuit of happiness. Perhaps not since passage of the Twilight Amendment, which deprecated many of our civil and human rights, and reintroduced unconstitutional concepts of rites, diversity (e.g. racism, sexism, genderism), warlock trials, and political congruence.

Since when has a silly thing like legality ever slowed down D opposition? Death, taxes, resistance.

Trump should make the case that we are causing the humanitarian crisis South of the border by giving the cartels unfettered access to cash rich drug markets north of the border.

Cut off the cash to the bad guys.

    Colonel Travis in reply to Ragspierre. | January 10, 2019 at 7:43 pm

    Neeeeope.

    Yet another “not this hill, not this time” crapfest from NR. Oh golly gee, it’s not the policy that’s bad, it’s just the guy behind it.

    BS.

    They pull this nonsense so many times that anyone with a brain should be able to understand that it is, in fact, the policies they do not like.

    There was a time when NR was valuable. That time has long gone. The magazine is a joke and should vanish into the sunset like The Weekly Standard.

      Ragspierre in reply to Colonel Travis. | January 10, 2019 at 7:59 pm

      You either didn’t listen or read, or you are just too far gone for reason to intrude into your madness.

      Try again…

        Colonel Travis in reply to Ragspierre. | January 10, 2019 at 8:31 pm

        Let me let you in on a little secret: I read the story you linked. Not only that, I read NR regularly for decades until they went off the deep end a few years ago. I did not. They did. I am extremely disappointed in the lack of intellectual honesty from those people. It’s shameful.

        I could link to stories explaining why a wall built under national emergency circumstances was perfectly constitutional, and which explain why. But I think you would blow them off, since all you brought here is superficial nonsense.

        The NR story you linked gave no specific reason why a wall cannot be built under national emergency circumstances other than The Editors don’t like the idea. Can you please point to me where in that article they say something like: “the Constitution says exactly right here that Trump can’t do this, and it is backed up by SCOTUS rulings here.”

        Let me help you out: they didn’t do that because they can’t do that because they, like you, are absurdly emotive NeverTrumpers. They can’t even argue that such a move by Trump is, in fact, illegal.

        Do not accuse me of going off the deep end when you bring nothing of substance to the table.

          Ragspierre in reply to Colonel Travis. | January 10, 2019 at 9:24 pm

          The Constitution is not “superficial nonsense”.

          A barrier should be built where it makes good sense to do so, and that was what was said. Long before T-rump came to that convenient conclusion, many of us had militated for it, including several of the NR authors.

          No issue of import is without controversy, and building anything on the thin reed of an “emergency” when no such thing exists will NOT withstand a Constitutional test. What invocation of such a power will lead to is the end of any barrier in any near time.

          You can hate on those who state reality all you want. It will not change reality.

          Colonel Travis in reply to Colonel Travis. | January 10, 2019 at 10:33 pm

          You yourself cannot point to specifics in the Constitution. Neither can National Review. I don’t think that can be stated enough: The very link you provided not only cannot defend its own argument with an ounce of significance, it cannot state for a fact that this proposal that freaks them out so much is even illegal.

          All you can do is blather about how you don’t like the proposal because it’s not constitutional.

          Why is it not constitutional? <—see this? It's kinda important to your entire argument and you've given zero reasons to back it up. Now why on earth have you taken this tack?

          I honestly don't know why you NeverTrumpers prefer a hissyfit over substantive, rational discourse and then blame everyone else for doing the very stupid thing you do, which typically no one is doing but you. All I know is that you NTs behave in a way I find repulsive.

          You want to see how easy it is to use specifics to bolster your argument? Can you actually do that? Sometimes you can. The times when you can't are times like now. I do not understand how you can look yourself in the mirror and think: yesterday I made some great points, I think today I'll act like a 4-year-old. Do you ever question your own integrity? I'm gonna guess no. And if that's how you want to roll, fine. But at least own up to it and don't accuse others of behaving like dipshits when you are King Dipshit.

          Back to substance: Trump can do this because of the National Emergencies Act. Is that just my say so? No. It's the say so of many people I've read, who aren't even Trump sycophants, and who have persuaded me through reasonable assertions that there is nothing unconstitutional about it. This does not mean that it is not politically risky. NeverTrumpers are afraid of political risk because it makes you look like savages or something. Again, I have no idea of the reasons of why the behavior of NeverTrumpers is so pansy-like, all I know is that the end result is pansy-like.

          Specifics:

          https://www.washingtonpost.com/news/monkey-cage/wp/2019/01/10/does-trump-really-have-absolute-power-to-declare-a-national-emergency-lets-examine-the-statute/?noredirect=on&utm_term=.ec1045a0b25e

          and here:

          https://thehill.com/opinion/judiciary/424314-yes-trump-has-authority-to-declare-national-emergency-for-border-wall

          and here:

          https://www.lawfareblog.com/can-president-trump-fund-wall-declaring-national-emergency

          and here:

          https://www.npr.org/2019/01/09/683501440/congress-aims-to-control-presidents-emergency-powers

          I am only going this far with you to show you what a child you are, and on one hand I believe this is a waste of my time. But I also know you have a brain – except that you like to frequently not use it. Maybe it's futile on my part, but by perhaps beating you over the head like you properly deserve, you might wake up one day and start using it all the time.

          I don't know how the hell you got into law school, let alone graduated.

          Back to Fairway Golf Solitaire because I've had it with you on this subject.

          Colonel, you aren’t arguing with Rags. You’re arguing at anyone who drops into Legal Insurrection who isn’t fully aware that he’s a dishonest broker.

          Making sure they are immunized against his nonsense? Now that’s worth it.

          Ragspierre in reply to Colonel Travis. | January 10, 2019 at 11:26 pm

          Being at an impasse with Congress is not an “emergency”.

          It is how the Constitution was written.

          Now go back to your name-calling bullshit.

          “Being at an impasse with Congress is not an “emergency”.
          It is how the Constitution was written.”

          Create a strawman instead of addressing the question. You a lawyer or not? Tell us specifically why it’s unconstitutional.

          The emergency is the horde of illegals trying to cross the border.

          Another emergency are ignoramus’s that claim to practice law, but cannot mount an argument based on the law.

          Read the constitution.

          Ragspierre in reply to Colonel Travis. | January 11, 2019 at 9:29 am

          Being at an impasse with Congress is not an “emergency”.

          It is how the Constitution was written.

          Now go back to your name-calling bullshit.

          The statutes you are trying to corrupt are about a true emergency that deprives the legislative branch of anything like its normal functions.

          They are NOT about letting an out-of-control executive run rough-shod over our constitution, no matter how his slavish fan-bois would love to see it.

        V.Lombardi in reply to Ragspierre. | January 11, 2019 at 7:10 am

        You regularly use insults as a substitute for reason. You decide you position ahead of time based upon bias.

    Signed “By the Editors”, meaning no one at the trash magazine was willing to put their name on such drivel.

    My dog can write better fiction.

      Ragspierre in reply to Barry. | January 10, 2019 at 9:25 pm

      You can identify all the editors of NR.

      You dog would do better.

      Barry in reply to Barry. | January 10, 2019 at 9:26 pm

      Hey, remember when you bitched about/made a big deal of that Gary seemingly upvoted himself?

      Feeling hypocritical at all?

        Ragspierre in reply to Barry. | January 10, 2019 at 9:28 pm

        No, liar, I never did that. But you’ll lie about anything, as you’ve prove time and again.

          “No, liar, I never did that.”

          Care to bet?

          Oh wait, let’s identify which thing you’re claiming you never did…

          V.Lombardi in reply to Ragspierre. | January 11, 2019 at 7:13 am

          The law in the 70s gives the president explicit authority to do this. You have no argument. You are not even trying sophistry. You favor massive invasion, theft and drug smuggling. The villains in this situation are the ones that allow or support the situation.

          Ragspierre in reply to Ragspierre. | January 11, 2019 at 9:22 am

          Everything you wrote is a lie. But this is how the T-rump cult “argues”.

        Barry in reply to Barry. | January 10, 2019 at 9:30 pm

        Ooh, that’s better, down vote me without upvoting yourself.

        My dog is laughing at you.

          Ragspierre in reply to Barry. | January 10, 2019 at 9:40 pm

          You are insane and malignant.

          About 80% of what you post here is lying attacks on me. You can’t help it, and your dog is ashamed…

          Barry in reply to Barry. | January 10, 2019 at 10:06 pm

          “About 80% of what you post here…”

          Well, Yeeeeup, you got me beat there. 95% of what you post here is links to nevertrump drivel.

          Ragspierre in reply to Barry. | January 10, 2019 at 11:25 pm

          That just another lie. You have nothing else.

Whatever the legal niceties, the Democrats will find a District Court Judge perhaps in San Francisco or Hawaii to issue a national injunction. The Ninth Circuit will concur. Perhaps years will pass and the coward John Roberts will do whatever is expedient for him.

Why is opposing the border wall the hill the Democrats have chosen to fight on? It’s clear why it’s so important to Trump—it’s the linchpin of his campaign promises and he feels he must deliver.

Or perhaps DJT honestly believes that a secure and legal border is important for the safety, integrity and general well-being of the United States. And now that a few tens of millions of Americans who share his belief have put him in a position to do something about it, he’ll do his best to make it happen. What’s right in front of our noses is sometimes reality.

People who are not career politicians sometimes have genuine beliefs, and some who are particularly energetic occasionally even act on them.

    The two positions are not mutually exclusive.

    President Trump believes in the border wall concept from the start.

    However President Trump is ALSO is astute enough to know that this is a centerpiece of his campaign, and at least SOME of the stuff that Steve Bannon said to him about keeping his campaign promises must have stuck (Bannon was vocal about doing the things that Candidate Trump promised, which is why the establishment-types worked so hard to push Bannon out of Trump’s inner circle).

    If he doesn’t deliver on this, he knows he’s not going to get reelected, and he knows that Congress’ “we’ll get to it next time” lie is now dead with the Democrat House of Representatives Control.

Confucius say: build wall now, court decide later.

it’s kinda fun watch people argue from both sides of their mouths(see Pelosi, Schumer). when they wanted Garland on the supreme court they wanted Obama to use recess appointment to get him there, the same way we go DACA, Obama keep saying he didn’t have the authority to do it but did it anyways, and the Supreme court in a round about way it was ok.

President Trump ABSOLUTELY has the right, power, and authority to declare a “National Emergency” on just about any topic, at any time, pursuant to a whole bundle of (largely poorly written) federal statutes, mostly centered around The National Emergencies Act (but there are a whole bunch of ancillary ones too).

This is largely the problem with Congress abdicating it’s authority to the Executive Branch because it was easy.

FEMA (the Federal Emergency Management Agency) basically exists solely for this purpose. Created by Executive Order, it ~usually~ it requires the Governor of a State to declare an emergency to allow the President to use Federal Employees on State land (and once the Governor does, FEMA’s powers bascially become unlimited). However, FEMA has additional special purview in federal enclaves or on federal lands to act solely at the direction of the President, where action of the agency is basically unlimited, and answerable to no one but the Director of FEMA.

President Trump ABSOLUTELY has the right, power, and authority to use the declaration of a “National Emergency” to take funds which were originally specified for certain federal spending projects and re-task them to whatever use he sees fit even loosely associated with the declared “emergency.” SOME of the federal statutes allowing for this are more strict about it than others.

Likely President TRUMP doesn’t even need to authorize a separate “National Emergency.” He can probably piggy-back off of President William Clinton’s 1995 Executive Order 12978: Blocking Assets and Prohibiting Transactions with Significant Narcotics Traffickers. President Trump simply needs to amend it to state that a physical barrier is necessary and proper to stop the flow of illegal drugs from Columbia which feed the drug culture within the United States. President Trump can simply state: this falls within the range of prohibiting transactions of these cartel individuals by limiting their ability to move product into the United States and disrupting the business transactions of those cartels within the United States.

Now, SHOULD President Trump use these powers is an entirely different question. But to the question of “DOES HE” have the authority to do this, the answer is clearly “yes.”

The President clearly has Constitutional Authority to repel an invasion.

Doing something to prevent an invasion is not so clear.

However, since there is a mob already at the border, building a wall could be easily argued to be part of the strategy of repelling an invasion, since the Army can’t be everywhere at once.

It would be poetic justice for those who cheered the mob on in their march that their mob would provide the justification for the wall!

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