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The Uncertain Constitutional Future of Trump’s Wall

By Alexa August

Despite initial relief that the longest government shutdown in United States history finally ended on January 25, 2019, the celebration was short-lived. The score between Congress and the Executive has not been settled and questions remain regarding the future of separation of powers. Government employees and the nation remain anxious to see what action the President will take when the stop-gap measure expires on February 15, 2019. President Trump recently stated that he would not shut down the government again if Congress did not strike a deal to fund “the wall” in time. Rather, Trump would declare a national emergency to order the military to expend funds for the wall’s construction. This would bypass political deadlock and leave the fate of the wall to be settled in a court of law. The outcome of such a case is less than clear-cut and would likely turn on specific language within the purported authorizing statutes.

While Trump is not inhibited from declaring a national emergency, he will have greater difficulty couching his actions within the specific statutory authority needed to order the military to expend funds for a military construction project— “the wall,” as well as practical and challenges to implementation. The President’s power to issue an executive order must stem from: 1) an act of Congress (e.g. statute delegating authority) or 2) the Constitution itself (i.e. presidential powers).

  1. The 1976 National Emergencies Act provides limited statutory authority for the President to act during a declared national emergency, but he would struggle to couch his order that the military expend funds for the wall’s construction under a separate required statute.

The National Emergencies Act (NEA) was born from Congress’ desire to rein in politically-motivated declarations of national emergency, due to mistrust of the executive during the Watergate and Vietnam era, and provides limited authorization for the President to act in a declared national emergency. Notably, Congress has the power to terminate the national emergency by joint resolution of Congress (requiring a two-thirds vote to override an anticipated veto). Most importantly, the NEA requires the President to cite a statute, separate from the NEA, providing express authorization for the actions he takes during the declared national emergency.

The President could cite two statutes in support of his statutory authority, but neither are clear-cut, each suffering from practical and legal interpretation issues. The first statute, 10 U.S.C. § 2808(a) provides that:

“In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects… not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction…that have not been obligated.”

Trump would have to overcome several ambiguities in arguing that this statute provides authorization, including demonstrating that the situation is so severe that use of armed forces is “required” and the wall is “necessary to support” them. Further, “the wall” may not fit the definition of a “military construction project” because it is not “carried out with respect to a military installation” or “facility,” namely a base. Semantics aside and as a practical matter, the statute only authorizes spending within the total amount of funds appropriated for military construction that have not been earmarked. Trump is not likely to find $5.7 billion of unallocated funds. The second statute, 33 U.S.C. § 2293(a), which permits diversion of resources from civil works projects to military construction projects “essential to the national defense,” is subject to similar flaws as those aforementioned.

If these practical and technical issues prove insurmountable in court, the President would not be acting pursuant to an act of Congress. Thus, he would have to rely on his sole presidential powers for his actions to pass constitutional muster.

  1. The President is unlikely to succeed on an argument that the Constitution itself provides authority.

In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), the Supreme Court nullified President Truman’s seizure of privately-owned steel mills under a declared national emergency, finding that it was incompatible with the express will of Congress and the President lacked authority under his sole Constitutional powers. Significant evidence demonstrates that ordering the military to expend funding to build the wall would be incompatible with the express will of Congress. Even when the Republicans controlled both the legislative and executive branches, Congress did appropriate funding for the wall. Further, the purpose of the NEA is to prevent future politically-motivated declarations of national emergency that bypass the legislative process and repudiate the separation of powers. The President cannot derive statutory authority from a statute while negating its legislative intent.

As the President’s actions would fall in Jackson’s third tripartite category, being incompatible with the express will of Congress, the President may only rely on powers expressly granted to him under the Constitution. Similar to Youngstown, the government would argue that the President is acting under his Commander in Chief authority. The Youngstown Court found that President’s “inherent emergency power” as Commander in Chief was not supported because the national security threat from the labor strike was not imminent or catastrophic. Similarly, the situation on the southern border is not unanticipated, urgent, and unable to be dealt with “according to rule.” This argument was rejected in Youngstown despite the strike potentially affecting the flow of armaments during the Korean War, and there is no war on the southern border.

As the President’s authority from an act of Congress would turn on specific statutory language and presidential powers do not provide authority, the fate of Trump’s wall would face an uphill challenge in court.


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