The White House should be extremely cautious in studying every single word in Congress’s spending bill, because even a single phrase could negate every authority President Donald Trump currently has under federal law to build and fund the border wall, even canceling his authority to declare a national border emergency.
Insiders around D.C. are talking about how the president can sign the spending bill that was unveiled this week, take the money that it authorizes for building a wall, then use executive authority to fund the rest of it. The president must proceed with extreme caution, because the opponents of the wall are the ones writing this 1,169-page monster legislation, and a single unnoticed sentence could lead to a court ruling that the president has signed away all of this legal authority to secure the border – including emergency authority.
As President Trump announced that he will declare a national emergency, Democrats like Speaker Nancy Pelosi (D-CA) and Sen. Chuck Schumer (D-NY) immediately decried the act, saying they will defend their Article I authority against the president’s power grab. They call this an “end run around Congress.”
That is laughable to the point of being absurd. President Trump is not claiming any inherent authority under Article II of the Constitution. Instead, he is acting exclusively within the authority that Congress has explicitly granted to any president under the National Emergencies Act, which triggers 136 separate statutory powers that Congress has embedded in various laws. Presidents have declared 59 emergencies since 1979, most recently this month when President Trump declared an emergency regarding the turmoil in Venezuela.
This is only one more emergency, similar to the previous 59. Congress has authorized this. The Constitution will not burst into flames. The sky will not fall.
Try the decaf.
Under current law, the president has a host of methods to build the border wall. The Secure Fence Act of 2006 authorizes building the wall, so the issue becomes one of funding. He does not require any additional authority from Congress; he requires only money.
If President Trump declares an emergency under the National Emergencies Act of 1976 (found at 50 U.S.C. § 1601) – as he says he will – then under 33 U.S.C. § 2293 he would have immediate access to $14 billion and could direct the acting defense secretary to order the Army Corps of Engineers to build the wall with that money.
That is far more than the $5.7 billion he needs for the most critical 231 miles of border wall, and does not even count whatever Congress has supposedly given him in this enormous spending bill.
Even without an emergency, the president has authority under 10 U.S.C. § 284 to have military resources build the wall, though his lawyers must be absolutely certain that this power also includes the ability to fund the building project without an emergency.
Under current law, the president has transfer authority, by which he could move certain funds from specific government programs and departments to others that could be used to build the wall.
Additionally, under the 2007 National Defense Authorization Act (NDAA), the U.S. Department of Defense can deploy troops to help secure the border whenever the U.S. Department of Homeland Security (DHS) informs the Pentagon that it requires assistance. If DHS requests such assistance, this NDAA also suspends the Posse Comitatus Act of 1878, which generally prohibits U.S. troops from performing law enforcement duties on U.S. soil.
Moreover, if the legislature of the State of Texas (or the State of Arizona) invoked its authority under Article IV, Section 4 of the U.S. Constitution to inform President Trump that the state regards itself as being invaded, then the president would have still more authority to use military resources to stop that invasion. The Insurrection Act of 1807, 10 U.S.C. § 251, specifies what the president could do in such situations.
But the president must beware. Experts are already flagging for concern Sections 230, 231, and 232 of the spending bill, raising the possibility that it limits the president’s flexibility to use any of the authorities listed above to secure the border and build the wall.
If the president signs this legislation, and the U.S. House votes to authorize Pelosi to sue the president in federal court or some other plaintiff is found to have standing to seek a court order to stop the wall’s construction, courts will apply the last-in-time rule: Whenever two statutes passed by Congress are inconsistent, the more recently enacted one supersedes the earlier law. Under a separate canon of statutory interpretation, a narrower provision in a law – such as a provision that specifies what can and cannot be built on the U.S.-Mexican border – supersedes a broader provision of federal law.
So if there is anything in this 1,169-page bill that purports to limit the president’s ability to build or fund the wall, then all the statutory authorities listed above would be cancelled. The president’s lawyers should expect Democrats are attempting to do precisely that, and study every comma in that bill. He needs to ensure that nothing snatches defeat from the jaws of victory.
When the Obamacare legislation was pending in 2010, Pelosi said, “We have to pass the bill so we can find out what’s in it.” The ACA turned out to be a disaster, including for example, that the statutory phrase “preventive care” later turned out to include abortion-inducing drugs and contraceptives. Conservatives have had two Supreme Court cases – Hobby Lobby and Zubik (the Little Sisters of the Poor) – fighting back against that mandate, and the problem is still not completely solved.
Republicans and conservatives cannot afford any more of those sorts of surprises, and President Trump does not deserve to get ambushed in court with something hidden in this bill.
If the president needs to sign another continuing resolution (CR) to fund the government for another few days while his lawyers examine the massive bill, then so be it. The Constitution gives him ten days to sign the major bill. He can take all the time necessary to confirm there are no poison pills in the bill.
All this can be explained by the Supreme Court’s famous 1952 decision, Youngstown Steel & Tube Co. v. Sawyer, known as the Steel Seizure Case, or simply as Youngstown. President Harry Truman ordered the U.S. Department of Commerce to seize control of the nation’s steel mills, citing the Korean War as making this government takeover a military necessity.
The Supreme Court struck down the executive order Truman issued.
In Justice Robert Jackson’s famous concurrence, he categorized presidential action in three categories. Those categories could make or break President Trump’s abilities to fulfill one of his two greatest campaign promises: the promise to secure the border.
(Ironically, his second defining promise is to put only constitutional conservatives on the Supreme Court and lower courts, which ironically will likely be essential to keeping his first promise, given that any action he takes will likely be challenged in court.)
In Youngstown Category One, a president acts pursuant to express authorities granted by Congress. Instead of invoking any constitutional power, he instead merely administers statutory power that Congress delegated through federal law. This is the strongest ground for a president to be on, since the actions are illegal only if they exceed the authorities granted by Congress or violate some limit imposed by the Constitution.
As Jackson put it: “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses plus all that Congress can delegate.”
In Youngstown Category Two, a president acts in the face of congressional silence. That does not warrant any more discussion here, since it is clear that Congress is anything but silent on this issue.
In Youngstown Category Three, a president acts against the explicit disapproval of Congress. Jackson says that presidential “power is at its lowest ebb” in that situation. That is the weakest ground a president can be on, because then the president can move forward only if his inherent powers under Article II of the Constitution, such as the Commander-in-Chief Clause, gives him the authority to override Congress on the issue in question.
Some people – both friends and foes of the president – are trying to warn him away from declaring a national emergency, saying that it will get caught up in court. The president should not fall for this canard. Anything he does will end up in court – period. Law, no law, emergency, no emergency… makes no difference. The litigation equation will not change.
Some are also cautioning that a national emergency would create a dangerous precedent. That too is a canard. The only powers that an emergency declaration would trigger are the emergency powers that Congress has built into various federal laws. It would not lead to gun confiscations, because there is no law giving any president power to seize guns during an emergency. (Such a law would be unconstitutional in any event, because it would violate the Second Amendment.)
President Trump should move forward with his national emergency. But he must ensure nothing in the spending bill would block the wall. If it does, he must veto, telling congressional Republicans to fix the bill instead of overriding his veto, so that a unified GOP can deliver the president’s promise to secure the border and lay a firm foundation for addressing immigration in this country.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.
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