On Friday, February 15th, President Trump played his last card in what has been a losing political hand in the battle to build the long-promised border wall with Mexico. By declaring a National Emergency on the Southern Border (NESB), the president has exercised a “nuclear option,” taking a long simmering partisan fight into unknown territory, testing political and legal norms in a new and provocative way.
At the heart of the NESB controversy is a simple question: can a presidential action that is entirely consistent with the law, at the same time be an improper use of Executive authority?
Despite heated punditry that suggests Trump’s NESB proclamation has put America on the road to blatant authoritarianism, the truth is far more complicated, with an impact that resonates beyond this particular exercise of authority. Indeed, the proclamation, may ultimately be the most beneficial and cathartic constitutional exercise in generations; a moment that will catalyze a deeply relevant debate over the foundational principle of “Separation of Powers,” which will likely reshape the conduct of the federal government for decades to come.
But to understand the potential impact of the NESB, we must first understand what was actually done, and how.
What Did Trump Actually Do: Elements of the NESB – Authority
The NESB announcement has triggered an avalanche of opinion and speculation, most of it wrong. For an extreme example, a friend related a conversation he had at a farmer’s market over the weekend. When the proclamation was brought up, my buddy was told – “authoritatively” – that the NESB required the US to declare war on Mexico. This is the kind of absurdity that, unfortunately, substitutes for informed analysis, which is available to anyone who is willing to do a bit of actual research using source documentation.
I have provided that for you here, with links, not to articles, but actual legislation, so each reader can decide on their own.
Most important, and much to the chagrin of the president’s critics, the NESB proclamation, and its associated funding components, are, in fact, scrupulously legal, adhering exactly to the authorities provided to the president. Indeed, careful review of the architecture of the NESB reveals a clearly thought out statutory and operational strategy to build the wall.
The Foundation of the NESB proclamation is the National Emergencies Act of 1976 (NEA). Section 201(a) provides the president with the power to declare a “national emergency.” The NEA serves as a “gateway” or “trigger” authority, which enables a “menu” of over 100 special provisions, in a variety of statutes, that provides the president with extraordinary, unilateral powers after an emergency proclamation.
In the case of the NESB proclamation, POTUS activated provisions in two statutes.
10 USC 12302 gives the president the power to call up the US military’s “Ready Reserve.” While the Administration has not detailed the rationale, this provision may be required in order to access a variety of technical construction specialists who may no longer be on active duty.
The only substantive restriction on this authority is a numerical limitation. Not more than 1,000,000 troops may be called to active duty at one time. By way of historical context, George W. Bush was the last (and only) president to invoke this specific authority through a national emergency, three days after 9-11.
The second, and more consequential authority in the NESB proclamation is 10 USC 2808. This provision gives the Secretary of Defense the authority to, “…undertake military construction projects not otherwise authorized by law.” Moreover, these projects can be undertaken “without regard to any other provision of law;” a truly breathtaking grant of discretionary power by Congress.
With this authority, SECDEF could theoretically use the military construction budget for any other projects, conditioned only by the restriction that the funds are properly appropriated by Congress, and not yet obligated by the department. Current estimates of the pot of available cash in this account runs as high as $20 billion.
Further, the “not withstanding” authority in this provision gives SECDEF the power to effectively disregard any law that might constrain project development, including the entire competitive bidding contract process, environmental studies, or other, usually mandatory, steps in large infrastructure projects. Indeed, this provision could conceivably provide SECDEF with the power to declare eminent domain to seize the land along the border required for the wall.
What Did Trump Actually Do: Elements of the NESB – Funding
The Administration’s strategy to fund wall construction is based on a hybrid approach; to use cash from the military construction budget, referenced above, and reprogram funds from different accounts within the Executive branch, where the president has (astonishing) delegated authority in the normal course of business.
Anticipating a flurry of lawsuits aimed at stopping wall construction, the Administration has knitted together a clever “waterfall” of funding that prioritizes the most accessible accounts first, in an attempt to complicate blocking strategies from opponents.
The first and easiest tranche of funding is the $1.375 billion, just approved in the budget deal, that POTUS signed in conjunction with the NESB proclamation. This is tightly earmarked money for a specific kind of fencing, not to exceed a total length of 55 miles. It is not what Trump envisioned, but it is a starting point.
The second tranche of $600 million, comes from the Department of Treasury Forfeiture Fund. 31 USC 9703.1(G) permits Treasury to carry out, “Equitable sharing payments made to other federal agencies,” without restriction, from forfeited property. A different statute, 19 USC 1616(c)(1) gives the Secretary of the Treasury unlimited power to transfer forfeiture assets to any other government agency. Wondering how the USG was able to amass $600 million in non-appropriated, discretionary funds? Check out 18 USC 981, which details property subject to civil forfeiture. It is breathtaking in scope.
The third tranche of $2.5 billion comes from DoD’s “Counter Drug Activities” account. Under 10 USC 284, the Defense Secretary has broad discretion to use funding to assist other federal and state agencies in counter drug activities, including, “The establishment and operation of bases of operation…for the purposes of facilitating counter-drug activities…or transnational crime…within or outside the US.”
The last and largest tranche, tied directly the NESB proclamation, is the $3.6 billion from the military construction account. This will be at the heart of any serious litigation, and will therefore be the most difficult to access, should lawsuits gain traction quickly. However, with the Administration’s “waterfall” approach, wall construction would have to burn through nearly $4.5 billion before military construction funds would be needed. At least in theory, a significant portion of the wall could be in place, while court fights proceed.
A deciding factor in the Administration’s eventual success will be at the intersection of invoked authority and blended funding, which raises legal questions. Most specifically, can unrelated, discretionary funds be pooled to support a national emergency declaration, and, is does any legal action forcing a “stay” in activity apply to this cohort of funds?
Critical to the actual construction plan is whether the NESB proclamation regarding DoD authority under 10 USC 2808 – to undertake projects without regard to any provision of law – can be construed to cover the blended funds not in DoD’s construction account. Without the ability to by-pass contracting, environmental and other time-consuming process issues, immediate progress would likely run aground regardless of how plentiful the cash is.
Given the care that has been taken in drafting the NESB, the actual debate is not whether the proclamation is legal – which it clearly is – but whether it is a proper exercise of Executive authority. This is where things get murky. At its heart is a question without a precise answer: what is a “national emergency?”
Genesis of “National Emergency” Authority
Section 201(a) of the NEA spells out the nature of presidential authority in a national emergency. “With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such emergency.”
In using this construction, the sponsor, Watergate-famous congressman, Peter Rodino (D-NJ), first sought to tie presidential power in a national emergency to specific Acts of Congress, in part to block future presidents from assuming “inherent” powers not found in the Constitution, or surreptitiously usurped from Congress; a trend in Executive branch practice after WWII.
Crucially to our current debate, instead of defining a “national emergency,” which could fail to take into account an unforeseen contingency, Rodino relied on a legislative mechanism to provide a congressional check on emergency declarations.
Specifically, if both houses of Congress supported a concurrent Resolution of Disapproval – by a simply majority vote in each chamber – the national emergency would be terminated. In this way, Rodino created a flexible, case-by-case test for national emergencies, without the need for a formal definition.
The problem with this solution was that the mechanism – a “legislative veto” – was ruled unconstitutional by the Supreme Court.
In 1983, SCOTUS decided the case of INS vs. Chadra 462 US 919. In its ruling, SCOTUS struck down the “legislative veto” provision present in the Immigration and Naturalization Act, which permitted either house of Congress to overturn individual deportation decisions made by the Department of Justice.
Specifically, SCOTUS found that the “legislative veto” circumvented the president’s explicit Article I Section VII power to veto legislation passed by Congress, requiring a 2/3rds majority in each chamber to override the veto and force passage.
The impact of the Chadra decision on NEA was tangible. The president’s ability to declare a national emergency – for any purpose – and access extraordinary powers, remained intact. However the intended oversight mechanism to check that power was gutted. Absent a super majority in both houses of Congress large enough to override a veto, Congress would be powerless to influence national emergency declarations. A law designed to curb Executive overreach now enabled it.
For the past 36 years, the only thing that has stood between a president and access to the full range of powers triggered by an emergency declaration under the NEA, has been the restraint and discretion of the incumbent president, and an informal, shared sense of proportionalism between congressional leaders and various Administrations on the nature of national emergencies.
That informal understanding ended on February 15th with President Trump.
The History of NEA National Emergencies
So what have “national emergencies” declared under NEA looked like?
Over the last 36 years, seven presidents have invoked NEA 59 times to declare a “national emergency.” President Trump’s surrogates love this statistic, and deploy it as proof that the NESB is nothing more than a continuation of a long tradition by presidents, of both parties, exercising authority, which has been blow out proportion in this instance.
However, a careful review of presidential invocation of NEA over the decades proves that characterization is false. Indeed the distinctions between the NESB and the presidential proclamations which came before it, explain why NESB has broken new ground that raises genuine constitutional issues.
In practice, presidential use of the NEA has been remarkably limited in scope. Almost all of the 59 national emergencies declared utilizing NEA were used to access authority under the International Emergency Economic Powers Act (IEEPA) 50 USC 1701. IEEPA authorizes a president to regulate commerce that originates in whole or in substantial part outside the US, and includes the ability to block transactions, freeze assets and investment, and confiscate property.
Jimmy Carter was the first to use NEA and IEEPA in 1979 when he blocked Iranian government property in the US during the hostage crisis. Since then, it has been used by every subsequent president, including Trump, to prohibit trade or economic transactions with Nicaragua, South Africa, Libya, Panama, Iraq, Haiti, Yugoslavia, Iran, Russia, Burma, Cuba, Sudan, Syria, North Korea, Congo, terrorist groups, the Taliban, as well as transnational criminal organizations, among others.
Before the announcement of NESB on Friday, there were only two national emergency proclamations that were not limited to the use IEEPA. In 2009, President Obama invoked the NEA to access powers under the Public Health Service Act 42 USC 201 – to grant waivers to hospitals overcrowded with Swine Flu patients. As previously noted, in 2001, President George W. Bush used NEA after 9-11, to call up military reserve forces, as President Trump also did with NESB.
NESB Distinctions
The first distinction of the NESB from others before it, begins with President Trump. In announcing the proclamation in the Rose Garden, Trump seriously undercut his own basis for the national emergency. “I didn’t need to do this, but I’d rather do it much faster,” the president said, announcing the emergency. No NEA proclamation has ever been made for the sake of convenience or speed, which POTUS implied.
The second distinction is found in the call up of reserve troops (10 USC 12302). When President George W. Bush did this in 2001, the effort was focused on an external terrorist threat to the country. Bush’s action complemented congressional legislation passed on the same day in the form of the Authorization for Use of Military Force Against Terrorists (AUMF), which passed 420-1 in the House, and 98-1 in the Senate; a def facto recognition that both the Executive and Legislative branches agreed on the nature of the emergency.
In contrast, President Trump’s mobilization of troops is intended for deployment inside the US. This raises the possible applicability of Posse Comitatus 18 USC 1385, which regulates the deployment of military units on American territory. Unlike the AUMF with Bush’s 2001 emergency, there is no companion congressional support for Trump’s invocation here, which leaves the proclamation politically exposed.
Third, and most important, the NESB represents the first time a president has used the NEA to reprogram appropriated funds, expressly outside the scope of presidential discretion, not simply without the consent of Congress, but with the open opposition of a large cohort in Congress. As the recent budget deal proved, there is simply no majority in the House or Senate to approve the $3.6 billion in funds that will be taken from military construction for the border wall, let alone the $8 billion that has been earmarked under NESB for the whole project. This action raises significant Article I questions within the principle of Separation of Powers.
Considering the NESB distinctions, another Supreme Court case becomes relevant, Youngstown v. Sawyer 343 US 579. This SCOTUS ruling rejected President Truman’s order for the government to seize privately owned steel mills in order to ensure the supply of weapons in wartime (Korean War) when labor strikes interfered. Justice Robert Jackson wrote a concurring opinion in the case, which set out a three-part test for presidential authority, which has been cited regularly by SCOTUS since 1952.
“When determining whether the executive has authority there are three general circumstances. First, when the President acts with the express or implied authorization of Congress then the President’s authority is at its greatest. Second, in the absence of either a congressional grant or prohibition then the President acts in a zone of twilight. In this circumstance, Congress and the President may have concurrent authority. In this zone of twilight, an actual test on authority will be dependent on the events and the contemporary theory of law existing at the time. The third circumstance is when the President takes measures that go against the expressed will of Congress, his power is at its lowest.”
Today, absent any recorded vote to ascertain congressional sentiment, the NESB would appear to fall into the “zone of twilight.” However, the NEA provides a 15 day timeline for a congressional resolution of disapproval. Such a resolution is being drafted in the House, and by the terms of the NEA, must be given a vote in the Senate. If a simple majority of the House and Senate were to support the disapproval resolution, even without a veto-proof majority to end the national emergency, that action would appear to move NESB to the third circumstance, when presidential power is at its lowest and least credible.
The Path to SCOTUS
Lawsuits have already been filed against the NESB proclamation, and more will follow. These suits cover gamut, including a novel suit filed in opposition to the border wall, as it would interfere with wildlife crossing the border, disrupting habitats.
The biggest initial hurdle for opponents will be to establish “standing:” the legally protectible stake or interest that an individual [group/organization] has in a dispute that entitles him to bring the controversy before the court to obtain judicial relief. The groups that are suing face a high bar to prove that the NESB impacts them directly.
The next issues will be timing. There is little doubt that the NESB will end up at SCOTUS, the question is whether the Court will want District and Appeals courts to weight in first, or whether, given the gravity of the issue, and the centrality of constitutional questions, The Supremes will fast-track the case.
At SCOTUS
The three distinctions raised above, with the relevant SCOTUS decisions, will frame the issue that will be decided by the Court. Specifically, does the NESB, in its current form, violate the Separation of Powers by usurping Congress’ constitutional authority under Article I Section IX that, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” I see three possible options.
Option #1:
The NESB aggregates authority and funding from six statutes duly passed by Congress, and in different forms, delegated to the Executive.
While the Constitution explicitly provides Congress with the “Power of the Purse,” Article I Section VIII, it also states that Congress has the authority, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” As Chief Justice John Roberts famously inferred in the 2012 Obamacare case, 567 US 519 (2012), it is not the job of the Supreme Court to rule on the wisdom of statutes passed by the people’s representatives, only their constitutionality within enumerated powers.
If the Court were to go in this direction, the defect in the NEA would be considered a problem for Congress to resolve, and the NESB would be upheld by virtue that the six statutes were “necessary and proper” for contingencies the government could face in an emergency. Congress would be free to amend the NEA, but that would not address the immediate border wall issue.
This would be the most hands-off approach the Court could take, staking out the territory that it is not the job of SCOTUS to referee political outcomes displeasing to the legislative body, which delegated the authority in the first place. Barring congressional action to remedy NEA, the unlimited power to declare a national emergency would be available for all future presidents as a precedent.
This is the best option for the Trump administration. Chances: 30%.
Option #2:
Declare the NEA unconstitutional in its present form.
The Chadra decision invalidated a key component of NEA, by significantly raising the bar for congressional influence in, and control over, national emergency decisions by the president. It is unlikely that the authors of the statute would have passed such a sweeping grant of Executive power, without definition, unless Congress had a meaningful way to check that authority. Marry this with Justice Jackson’s “test” from the Youngstown decision, and the defect in NEA becomes glaring.
This potential ruling is solid legally, and also politically. As Chief Justice Roberts’ paramount concern remains the credibility of the Court, ruling the NEA unconstitutional in its present form would allow SCOTUS to invalidate the NESB without actually stating that the proclamation itself was unconstitutional.
Without NEA, NESB collapses. There would be still be the issue of the discretionary funds, not directly included in the NESB proclamation, catalyzing additional litigation whether these funds could be used for wall construction, absent a national emergency. SCOTUS would have the option to vote on that as well. Such a decision would leave Congress with its hands full, as the entire architecture of national emergency action will have been invalidated.
This ruling could get support from both the conservative and liberal wings of the Court. Chance: 50%.
Option #3:
The “Big Kahuna.”
Congressional delegation of emergency powers to a president, when such action involves presidential re-programming of funds previously appropriated by Congress, is a violation of the Separation of Powers in all instances and unconstitutional.
This course would invalidate the NEA, and impact sections all legislation that grant the president the authority to spend appropriated funds while using emergency powers.
It would also call into question the wisdom of delegations of discretionary spending to the president, and cast a critical eye on funds collected by the government, but not subject to congressional appropriation/jurisdiction, that serve effectively as Executive branch “petty cash,” as the Forfeiture Fund currently does. This would fundamentally alter the balance between the president and Congress in the legislature’s favor.
This depends on John Roberts. If the Chief Justice is in a “Go Big or Go Home” mood, this sweeping decision could conceivably command a majority. Chance: 20%
Conclusion
The most sacred principle enshrined in the US Constitution is the sovereignty of the people. The government works for us, not the other way around. The Founders sought to achieve that goal by carefully crafting and limiting enumerated authorities in the Constitution, divided between three, co-equal branches of government, through a Separation of Powers. The genius of our Constitution is that by its very design, it’s self-enforcing. When one branch of government becomes too powerful, the others eventually balance it out.
The exigencies of the Cold War required a level of congressional deference to presidential initiative that would have been unthinkable at the nation’s founding. While the Cold War ended, 9-11 again exposed a glaring need to have one institution that could respond rapidly to a crisis.
The result of this deference, this seepage over the last 75 years, has been the creation and expansion of a vast and incredibly powerful federal bureaucracy, empowered through delegated authorities, which operates so broadly that no meaningful oversight is possible.
It has led to serial abuses, be it the use of the intelligence community during the Cold War, the general conduct of President Nixon, Iran Contra under President Reagan, to the manipulation of federal agencies for partisan purposes under President Obama. The only way this ends, is with a rebalancing of power in favor of Congress that specifically limits Executive overreach.
President Trump is not responsible for creating this problem, but he is responsible for exploiting it. Drugs and illegal immigration may constitute a national emergency. But given that the authority is undefined, and given the rare and narrow use of that authority since it became law, not to mention the strong political opposition, the use of authority in this instance looks opportunistic and political.
Just because you can do a thing, does not justify doing it. In utilizing the legal authority of a national emergency to justify a border wall that could not be secured through the regular legislative order, Trump violated a collective sense of governing norms, while also lowering the bar for a law designed for sparing use during a genuine national crisis. It has now been transformed into a low-rent political tool, and by precedent, available to all future presidents who cannot pass their political agenda as laid out in the Constitution. With POTUS having crossed the line, it is now up to the two other branches of government to re-balance the power.
This is not an anti-Trump vendetta. Rather it is a recognition that the concentration of power that the president has proclaimed available to himself, no matter how noble supporters may believe his motives are, nor how legal his actions have been according to the text of statutes, is ultimately dangerous to our system of government, not just today, but for all time. This is particularly worrisome as the Democrat Party slides toward socialist extremism, which is premised on unquestioned Executive authority and unilateral action that Trump has just exercised.
A ruling against NESB would be a tactical defeat for Trump, but a strategic win for America. The president can always take his case to the American people and win a majority to back his proposals. He can win funding for the wall the old fashioned way.
The only sovereign in America are the people. We have a collective interest in ensuring that remains true for all the generations to come.