{"id":12309,"date":"2019-03-23T15:38:12","date_gmt":"2019-03-23T20:38:12","guid":{"rendered":"http:\/\/sites.law.duq.edu\/juris\/?p=12309"},"modified":"2019-05-20T20:32:53","modified_gmt":"2019-05-21T01:32:53","slug":"is-president-trumps-national-emergency-declaration-to-fund-construction-of-a-border-wall-setting-a-dangerous-precedent","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2019\/03\/23\/is-president-trumps-national-emergency-declaration-to-fund-construction-of-a-border-wall-setting-a-dangerous-precedent\/","title":{"rendered":"Is President Trump’s National Emergency Declaration to Fund Construction of a Border Wall Setting a Dangerous Precedent?"},"content":{"rendered":"

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Photo courtesy of Pixabay.<\/figcaption><\/figure>\n

By: Claude Ngatchou, Staff Writer<\/strong><\/p>\n

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On February 15, during a news conference in the White House Rose Garden, President Trump announced that he would sign a spending bill to prevent another government shutdown and declared a national emergency to fund construction of a wall along the southern border.[1]<\/sup><\/a> In the spending bill passed by Congress, only $1.375 billion was allocated for border barriers \u2013 Trump wanted $5.7 billion.[2]<\/sup><\/a><\/p>\n

President Trump\u2019s emergency declaration faced immediate criticism from Democrats. House Speaker Nancy Pelosi (D-CA) and Senate Minority Leader Chuck Schumer (D-NY) issued a statement calling it an \u201cunlawful declaration over a crisis that does not exist,\u201d and vowed that \u201cCongress cannot let the President shred the Constitution.\u201d[3]<\/sup><\/sup><\/a><\/p>\n

In addition to the democrat\u2019s criticism, Trump\u2019s declaration is also facing legal challenges. \u00a0On Monday, February 18, 16 states filed a lawsuit against President Trump in the U.S. District Court for the Northern District of California.[4]<\/sup><\/a> The complaint alleges that the emergency declaration is unconstitutional and seeks to bar the Trump Administration from diverting money from other projects to fund the border wall.[5]<\/sup><\/a> California Attorney General Xavier Becerra, who spearheaded the lawsuit, stated that \u201cthe Constitution gives Congress alone the power to control spending, not the president.\u201d[6]<\/sup><\/a> The law suit also alleges that \u201credirecting funds from drug interdiction, military construction projects and laws enforcement initiatives toward a wall would cause \u2018significant harm\u2019 to the public safety, financial well-being and natural resources of the plaintiff states and their residents.\u201d[7]<\/sup><\/a> In other words, the states are arguing that they have standing to file the lawsuit since Trump may be appropriating money that was allocated to them.[8]<\/sup><\/a><\/p>\n

Before the lawsuit was filed, President Trump acknowledged the likelihood of legal challenges.[9]<\/sup><\/a> He said, \u201cWe will possibly get a bad ruling, and then we\u2019ll get another bad ruling, and then we\u2019ll end up in the Supreme Court, and hopefully we\u2019ll get a fair shake.\u201d[10]<\/sup><\/a><\/p>\n

President Trump is not the first president whose declaration was challenged in the courts. In Youngstown Sheet & Tube Co. v. Sawyer<\/em>, the Supreme Court ruled against President Truman\u2019s seizure and possession of privately owned steel mills.[11]<\/sup><\/a> It held that Truman\u2019s \u00a0would be an overreach of executive power and stated that the President does not have lawmaking powers.[12]<\/sup><\/a> The Supreme Court explained that \u201cThe Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.\u201d[13]<\/sup><\/a><\/p>\n

After Youngstown<\/em>, Congress enacted the National Emergency Act of 1976 to formalize the power of Congress to provide checks and balances on the emergency powers.[14]<\/sup><\/a> Under the National Emergencies Act of 1976, a president must formally submit to Congress and to the Federal register a declaration of the national emergency, specify the statutory authorities he or she is invoking, and renew the declaration every year, or it will automatically expire.[15]<\/sup><\/a><\/p>\n

According to a statement issued on the White House website, the Trump administration is providing legal justification through the statutory authorities he is invoking.[16]<\/sup><\/a> Furthermore, the declaration has been formally submitted to the Federal Register and Congress.[17]<\/sup><\/a> Therefore, it appears that the Trump Administration is complying with the statutory requirements on the National Emergencies Act.<\/p>\n

On March 14, the Senate voted to overturn President Trump\u2019s emergency declaration, 59 to 41.[18]<\/sup><\/a> After the legislation passed, Trump issued the first veto of his presidency.[19]<\/sup><\/a> The next step for Congress is to decide whether they will vote to overturn the president\u2019s veto.[20]<\/sup><\/a> However, \u201cCongress [] almost certainly does not have enough votes\u201d to override the veto.[21]<\/sup><\/sup><\/a><\/p>\n

As for the legal challenges, the courts may be faced with a lot of questions, including the challenge to define a national emergency in order to reduce the likelihood of abuse and take the responsibilities of a liberal and democratic interpretation of Congress\u2019s emergency law out of the president\u2019s scope. Nevertheless, University of California Law Professor John Yoo thinks Trump has a winning legal agreement. He stated, \u201cTrump\u2019s best hope in court is that judges (and presumably SCOTUS) will take the traditional deference to the president\u2019s national-security authority and combine that with express congressional delegation of emergency powers to give him virtual carte blanche in situations like this.\u201d[22]<\/sup><\/a><\/p>\n

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Sources:<\/strong><\/p>\n

\n

[1]<\/a> http:\/\/time.com\/5496270\/presidents-history-national-emergency\/<\/p>\n

[2]<\/a> Id.<\/em><\/p>\n

[3]<\/a> https:\/\/www.speaker.gov\/newsroom\/21519-2\/<\/p>\n

[4]<\/a> \u00a0https:\/\/www.npr.org\/2019\/02\/18\/695821740\/16-states-sue-over-trumps-national-emergency-declaration.<\/p>\n

[5]<\/a> https:\/\/www.npr.org\/2019\/02\/18\/695821740\/16-states-sue-over-trumps-national-emergency-declaration.<\/p>\n

[6]<\/a> Id.<\/em><\/p>\n

[7]<\/a> Id.<\/em><\/p>\n

[8]<\/a> Id.<\/em><\/p>\n

[9]<\/a> Id.<\/em><\/p>\n

[10]<\/a> Id.<\/em><\/p>\n

[11]<\/a> Youngstown Sheet & Tube Co. v. Sawyer<\/em>, 343 U.S. 579 (1952).<\/p>\n

[12]<\/sup><\/a> Id.<\/em><\/p>\n

[13]<\/a> Id.<\/em> at 589.<\/p>\n

[14]<\/a> http:\/\/uscode.house.gov\/view.xhtml?path=\/prelim@title50\/chapter34&edition=prelim.<\/p>\n

[15]<\/a> Id.<\/em><\/p>\n

[16]<\/a> https:\/\/www.whitehouse.gov\/briefings-statements\/funds-available-address-national-emergency-border\/<\/p>\n

[17]<\/a> https:\/\/www.federalregister.gov\/documents\/2019\/02\/20\/2019-03011\/declaring-a-national-emergency-concerning-the-southern-border-of-the-united-states<\/a>, submission to congress is missing<\/p>\n

[18]<\/a> https:\/\/www.nytimes.com\/2019\/03\/15\/us\/politics\/trump-veto-national-emergency.html<\/p>\n

[19]<\/a> Id.<\/em><\/p>\n

[20]<\/a> Id.<\/em><\/p>\n

[21]<\/sup><\/a>Id.<\/em><\/p>\n

[22]<\/a> http:\/\/nymag.com\/intelligencer\/2019\/02\/trump-counting-on-supremes-to-support-emergency-declaration.html<\/p>\n","protected":false},"excerpt":{"rendered":"

  By: Claude Ngatchou, Staff Writer   On February 15, during a news conference in the White House Rose Garden, President Trump announced that he would sign a spending bill to prevent another government shutdown and declared a national emergency to fund construction of a wall along the southern border.[1] [\u2026] <\/p>\n

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