BU Today

In the World

Is Trump’s Declaration of a National Emergency Constitutional?

BU’s Robert Sloane on whether border wall meets law’s emergency definition

7

Having been rebuffed by Congress in his effort to secure $5.7 billion to build 234 miles of wall along the US/Mexico border, President Trump Friday invoked criminal immigrants and illicit drugs, which he said flow over the border, to declare a national emergency, allowing him to divert billions earmarked for military construction projects, counternarcotics programs, and other funds to build his wall.

The deal to keep the government open Trump signed almost simultaneously with the declaration of emergency included only one-fourth of the barrier funding he’d demanded to fulfill his signature campaign promise.

Presidents have long declared emergencies (the Civil War and Great Depression among them). Since 1976, when Congress sought to regulate such declarations by passing the National Emergencies Act, presidents have designated more than 58 emergencies, most of them in response to foreign crises, such as when President George W. Bush signed an executive order after the 9/11 attacks empowering the president to reroute military construction money.

Critics have challenged Trump’s declaration on policy grounds, saying the bulk of illegal drugs come through legal ports of entry, and that illegal immigrants commit less crime than native-born Americans. But they also make a legal argument: that Trump is doing an end run around Congress’ stated opposition to funding such a wall, violating the Constitution’s language giving legislators control over appropriations.

The American Civil Liberties Union and the state of California are among those saying they’ll challenge the president’s emergency declaration in court. And Democratic congressional leaders have vowed to introduce legislation to block the president’s plan.

Who’s right? And will Trump’s declaration stand? BU asked international law scholar Robert Sloane, a School of Law professor of law, who has taught national security law.

BU Today: By what authority can a president declare a national emergency? Are there any limits on that power?

Sloane: The Constitution ordinarily prohibits the president from repurposing money appropriated by Congress for other purposes. Congress has not appropriated money for President Trump’s desired wall; to the contrary, a bipartisan majority of the House and Senate opposes it.

Perhaps the most famous national security law precedent, and one with special relevance here, is the 1952 Supreme Court case Youngstown Sheet & Tube Co. v. Sawyer: the Steel Seizure Case suggests that absent a statute, the president’s declaration would be unconstitutional. The Supreme Court held that President Truman lacked wartime authority to enjoin a strike he said would be necessary for the safety of our troops during the Korean War. The idea that President Trump has the constitutional authority to redeploy military funds to build a border wall during peacetime, absent a national security crisis (still less one endangering the troops), is implausible, and it should be risible.

It’s not implausible only because Congress enacted the National Emergencies Act. It sought to specify the circumstances under which emergencies could be declared. Ironically, the Congress that enacted it intended to limit, not expand, the authority of the executive branch to declare national emergencies. On its face, the act nonetheless authorizes the president’s action. Nothing in it clearly prohibits Trump’s unilaterally declaring a national emergency, and once the act’s been invoked, repurposing funds from other congressional appropriations to fund a border wall by dint of certain statutes that the National Emergencies Act activates.

What does declaring an emergency empower him to do?

It allows the president to terminate and defer civil works projects “he deems not essential to the national defense,” and to redeploy the resulting funds in order “to construct,” among other things, “civil defense projects that are essential to the national defense.” Under a distinct provision, the president, “without regard to any other provision of law,” may repurpose funds for military construction projects, which, while not authorized by Congress, he deems “necessary to support such use of the armed forces.”

What precedents are there for presidential emergency declarations?

To my knowledge, no president has ever tried to use national emergency funding to appropriate funds Congress refused to appropriate. Politically, it would mean the president would be seeking, as President Trump would indeed be doing here if he vetoes a proposed Congressional resolution disapproving the emergency declaration, to override a bipartisan judgment of Congress. If Congress has the votes to override, his authority terminates—as it would have, and had been intended to, with only a simple majority of each house. But a Supreme Court decision in 1983 invalidated such so-called legislative vetoes.

If Congress lacks the numbers to override—and it’s doubtful that enough Republicans would defect to enable a two-thirds majority in the House and Senate—the president would be proceeding in the face of congressional opposition, which, in turn, effectively weakens his position before the courts.

Legally, the courts will be faced with a host of questions. Two among them strike me as paramount: First, what is an emergency? The act does not define it. Second, however a federal court decides that question, what degree of deference should the judiciary give the president’s determination that a national emergency exists? Past emergencies include events on the order of the attacks of 9/11 and the Persian Gulf wars. There is no national security emergency that approaches that level of crisis at the US-Mexico border, only a humanitarian one.

In my view, the courts will be abdicating their constitutional responsibility if they decide an emergency means, as the Lewis Carroll cliché has it, what “[the president] choose[s] it to mean—neither more nor less.” Equally, let’s hope we have not reached a time when the legal question is, as Carroll’s Humpty Dumpty goes on to say, “which is to be master—that’s all.”

Could a declaration be challenged?

Apart from challenges based on the definition of “emergency” and the degree of deference owed the president, challenges will likely be brought based on the particular language of the statutes. The repurposed funds must be drawn from appropriated “military construction projects…necessary to support [the] use of the armed forces.” It’s questionable whether the wall qualifies in this regard, and it’s especially troubling that the statute singles out “funds appropriate for [military] family housing,” because the past week witnessed scathing reports on the substandard military housing that exists and the lack of funds to improve it.

It’s also dubious that the proposed emergency justification for repurposing funding for the wall can be deemed either to “require use of the armed forces” or to be “essential to the national defense.”

Some legal experts say declaring an emergency could undermine Americans’ faith in the constitutional system, as the president would be doing an end run around Congress on a funding dispute. Do you share that worry?

Very much so. I see the country’s democratic norms and institutions gradually, but at this point inexorably, eroding. Congress’ abdication of its constitutional responsibilities has, if not caused, been an indispensable enabler of that development in the past half century. Since relinquishing its authority to declare war during the Truman administration, in the past half century Congress has progressively sought to delegate more and more of its enumerated power to the executive branch. Far more recent examples of the erosion of US democratic norms that leap to mind include the use of the debt ceiling and government shutdown brinkmanship to extort policy goals outside the constitutional process, and the refusal of the Senate to fulfill its constitutional duty to advise and consent to a duly nominated candidate to the Supreme Court. Some argue that it was technically legal. True, but it’s also technically legal to use threats not to authorize raising the debt ceiling, government shutdown brinksmanship, and now, perhaps, declarations of faux national emergencies, in an effort to get one’s way outside the ordinary political and legal processes. The problem, of course, is that it gradually erodes the shared norms that sustain our constitutional democracy. Learned Hand’s well-known quotation is prophetic in this regard. “I often wonder,” he said, “whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it…”

7 Comments
Rich Barlow, Senior Writer, BU Today, Bostonia, Boston University
Rich Barlow

Rich Barlow can be reached at barlowr@bu.edu.

7 Comments on Is Trump’s Declaration of a National Emergency Constitutional?

  • TG on 02.20.2019 at 6:24 am

    Executive power abuse has happened well before Trump. Obama said several times he cannot do anything about the Dreamers but he found his “pen and phone” and bypassed congress and created the Daca program. The pendulum swings both ways. There is an imbalance where the executive branch has too much power and it is important that the Left and Right realize this and try and fix it.

  • Richard Chappo on 02.20.2019 at 3:17 pm

    In fairness, are you going to publish a legal opinion supporting the President? You never have and I wonder if your faculty is balanced which I’m sure it is not. Bottom line, this is a national emergency and not because of humanitarian reasons. Our southern border is open and we have lost control of who is entering our country. We have a legal immigration system which must be enforced. Thousands illegally crossing our border is a national emergency.

    • Ramon Antonio Reyes Gonzalez on 02.20.2019 at 7:42 pm

      TRUMP’S False-Positive Strategies

      Ladies and gentlemen, there are two controversial issues at law that is neccesary to be considered; the first one, we need to understand what kind of government system the US is applying: ‘Theory democracy or theory technocracy? The second one, is domestic law override by international Conventions signed by the US Government?

      Mr. Trump has said in relation to the Venezuelan socio-political crisis that ‘democracy’ needs to be restored into that country. Therefore, it appears that ‘Democracy theory’ is the American politicians are inclined to. However, if President Trump, decided to ‘declare national emergency’ to pursue his own personal desires, that is not a ‘democratic decision-making’. Even if the US Government applies ‘Technocracy Theory’; then, Mr. Trump must rely on “experts’ opinion”; but what expert’s opinion he must to relay on? Democrat or socialist expert’s opinion? Which one is right or weong? In both cases, if he doesn’t follow the conventional ‘theories’; then, Mr. Trump’s decision is unconstitutional.

      The US Government is a signatory country of the International Convention Relating to the Status of Refugees and under the Vienna Convention on the Law of Treaties (in force since 27th January 1980) in its preamble paragraphs 4, 5, and 6 says as follows:

      “(4) Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized,

      (5) Affirming that disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of justice and international law, and

      (6) Recalling the determination of the peoples of the United Nations to establish conditions under which justice and respect for the obligations arising from treaties can be maintained,”

      In articles 26 and 27, the Convention says:

      “Article 26 – Pacta sunt servanda

      Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

      Article 27 Internal law and observance of treaties

      A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.”

      Therefore, if the US Government has not yet ratified the Convention to be bound, then, the American government has not genuine intentions to apply a reliable ‘democratic system’ and Mr. Trump’s arguments for a democratic government in Venezuela has not fundaments to pursue a ‘military intervention; into that country and the construction of the wall in the Mexican border is not yet justified.

    • Dan on 02.20.2019 at 9:53 pm

      “I didn’t need to do this”- Trump, when asked about the necessity of declaring a national emergency.

      Yeah that sounds real urgent. Besides, if it really was an emergency, why did he wait two years until his party lost Congress? He was calling it an urgent national security crisis back in 2016, why is it suddenly an emergency now, when using the “national emergency” authority is the only way he can possibly get funding against the will of the American people as represented by Congress?

      And whatever happened to “Mexico will pay for it?” What is the Trump camp’s opinion about Mar-A-Lago’s history of employing illegal workers? If the world is so dangerous we have to wall it off, as if that would even be effective at all, why are Trump officials being investigated at this moment for arranging to sell restricted nuclear technology to fundamentalist countries? Does this fit the continuing pattern of people close to Trump being indicted for corruption and collusion?

      Sometimes a man, or a President, can be so misguided that no one with sense or intelligence can find rational justification to support him. And if that’s why there’s no “balance” in journalism, it’s his own fault.

  • Ramon Antonio Reyes Gonzalez on 02.20.2019 at 7:37 pm

    TRUMP’S False-Positive Strategies

    Ladies and gentlemen, there are two controversial issues at law that is necessary to be considered; the first one, we need to understand what kind of government system the US is applying: ‘Theory democracy or theory technocracy? The second one, is domestic law override by international Conventions signed by the US Government?

    Mr. Trump has said in relation to the Venezuelan socio-political crisis that ‘democracy’ needs to be restored into that country. Therefore, it appears that ‘Democracy theory’ is the American politicians are inclined to. However, if President Trump, decided to ‘declare a national emergency’ to pursue his own personal desires, that is not a ‘ democratic decision-making’. Even if the US Government applies ‘Technocracy Theory’; then, Mr. Trump must rely on “experts’ opinion”; but what expert’s opinion he must to rely on? Democrat or socialist expert’s opinion? Which one is right or wrong? In both cases, if he doesn’t follow the conventional ‘theories’; then, Mr. Trump’s decision is unconstitutional.

    The US Government is a signatory country of the International Convention Relating to the Status of Refugees and under the Vienna Convention on the Law of Treaties (in force since 27th January 1980) in its preamble paragraphs 4, 5, and 6 says as follows:

    “(4) Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognized,

    (5) Affirming that disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of justice and international law, and

    (6) Recalling the determination of the peoples of the United Nations to establish conditions under which justice and respect for the obligations arising from treaties can be maintained,”

    In articles 26 and 27, the Convention says:

    “Article 26 – Pacta sunt servanda

    Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

    Article 27 Internal law and observance of treaties

    A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.”

    Therefore, if the US Government has not yet ratified the Convention to be bound, then, the American government has not genuine intentions to apply a reliable ‘democratic system’ and Mr. Trump’s arguments for a democratic government in Venezuela has not fundaments to pursue a ‘military intervention; into that country and the construction of the wall in the Mexican border is not yet justified.

  • Peter wizner on 02.22.2019 at 1:22 pm

    100,000 illegal border crashers. Including drugs, disease,gangs and possibly muslim terrorist , isnt a national emergency ,I dont know what is.

  • Christina Knight on 03.05.2019 at 9:42 am

    I think the best way to go about this, is by suing the Trump administration, on the grounds that the 1976 National Emergencies Act is unconstitutional on Article one grounds. This way new legislation can be drafted that permits Congressional involvement in national emergency decisions that does not compromise Article one.

Post Your Comment

(never shown)