President Trump has an unlikely ally in his move to declare a national emergency, freeing up money to build a border wall despite bipartisan opposition — Capitol Hill’s own think tank.
Despite promises from Democratic leaders to sue to stop Trump, the nonpartisan Congressional Research Service has determined that the move may be legal and effective.
In its most recent report on the border wall, CRS said that Congress actually wrote the legal path for Trump to follow to tap into Pentagon construction money to build the wall, and a new analysis of that report confirms that the president appears to have the green light from Capitol Hill.
“Many in Congress are condemning President Donald Trump’s just announced decision to declare a national emergency to help build a wall on the southern border, but such a declaration would apparently be both legal and effective,” said legal scholar and George Washington University Law School Professor John Banzhaf.
“While many claim that any emergency declaration would be unconstitutional, many legal scholars – including Prof. Banzhaf – doubt it
A statute authorizes it and
dozens of such emergencies have been declared without a successful challenge,
Banzhaf GWU Lawhttps://t.co/E0i7Ir3r4M pic.twitter.com/74tZRQlHdB— John Banzhaf (@ProfBanzhaf) February 15, 2019
He said that the CRS review of legal angles Trump can use to build the wall shows at least two paths to success, one that does not even require the White House to declare a national emergency.
But since Trump plans to make that announcement today, Banzhaf in his analysis focused on the National Emergencies Act and the loopholes Congress provided to the president, such as giving the president alone the right to declare a national emergency.
While the act said that Congress can vote to terminate an emergency, it is unlikely that it will win enough support to succeed, and certainly not enough votes to override a Trump veto, said Banzhaf in his latest blog post.
He also detailed the paths around legal challenges, though he said that it is likely that the challenge by Democrats will end up being decided by the U.S. Supreme Court.
The key elements of Banzhaf’s analysis are here:
The CRS reported more specifically that “Upon declaring a national emergency pursuant to the NEA, the president may invoke the emergency military construction authority set forth in 10 U.S.C. § 2808 (Section 2808). . . . Section 2808 provides that upon the president’s declaration of a national emergency ‘that requires use of the armed forces,’ the Secretary of Defense may ‘without regard to any other provision of law . . . undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces.’”
In this regard it should be noted that the president has already determined that events regarding the border “requires use of the armed forces.” Indeed, he has reportedly sent thousands of members of the armed forces to the border; an action which has not been successfully challenged.
The CRS also advised that, although there may be certain limits, “several other statutes may provide the DOD with some authority to construct barriers along the border. The president may cite these authorities either individually or in combination with Section 2808 to support such construction.” Specifically mentioned are 33 U.S.C. § 2293, 10 U.S.C. § 2803, and 10 U.S.C. § 284.
In passing the NEA, Congress assured that any president has clear statutory authority – in addition to powers he probably has independently arising directly from the Constitution – to declare a national emergency.
Unfortunately, at least with the great wisdom of hindsight, the act places no limits or restrictions on a president’s ability to make such a declaration.
