Editor’s Note: A guest post by Brian L. Glorioso, Esq., attorney at law in Slidell and 2018 candidate for Louisiana House District 90.
President Trump can use the 1976 National Emergencies Act to order the Department of Defense to build the wall. The law allows the use of Defense Department funds for construction of a border wall, and further the Courts are powerless to intervene.
In 1976 Congress passed the National Emergencies Act delegating to the President the power to declare a national emergency, and to exercise certain powers without action by Congress. Congress does not define what constitutes a National Emergency, rather it is left solely to the discretion of the President. This provision has been used several times already by Presidents Bush, Obama, and even Trump. Several existing Federal statutes allow for the use of Defense Department funds under a National Emergency declaration for constructions necessary for the defense of our country including 10 U.S.C.A. §2803, 10 U.S.C.A. §2808, 19 U.S.C.A. §69, and 33 U.S.C.A. §2293.
Further, The National Emergencies Act (50 U.S.C.A. § 1622) seems to limit the authority of the Federal Courts to overrule the President’s decision. Specifically, The National Emergencies Act contains express provisions allowing only Congress or the President to terminate the emergency order. Thus, the courts should not have jurisdiction to terminate the emergency order. Further, the “political question” doctrine, which is a judicial rule limiting the ability of the Courts to decide questions of political policy, would prohibit a Judge from supplanting the judgment of the President with their own political judgment. See Beacon Products Corp. v. Reagan, 633 F.Supp. 1191(1986) and also, Mobarez v. Kerry, 187 F.Supp.3d 85(2016). Thus, an activist Federal Judge should not be able to decide whether or not there exist a valid national emergency, only the President can do so and only Congress can act to restrain the power they have granted to the President.
There has been some discussion in the media of the Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579(1952) case in which the Court determined that President Truman exceeded his power in seizing the U.S. steel industry during the Korean War. However, the Youngstown decision (1952) has no bearing on the current issue because Youngstown was pre- National Emergencies Act (1976), and the basis of that decision was that President Truman lacked the power to act because there was no authority granted in the Constitution or by Congress. However in the current matter, there is express authority granted by Congress by the National Emergencies Act and the other statues cited herein.
Thus, President Trump can legally declare a National Emergency, and authorize the Department of Defense to build the wall using existing Department of Defense funds, and only Congress can stop him. In order to terminate the Order a joint resolution would have to be passed by both houses of Congress and signed by the President, or if vetoed then Congress would have to override his veto.
This should be the ultimate leverage for President Trump to deliver on his promise and build the wall with or without the help of Congress. Don’t be surprised if he announces this very course of action in his speech tonight.