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reDemocratic congressional leaders claim that President Trump's decision to declare a national emergency to spend extra money on a border wall is illegal, with even saying this maneuver is more like a dictatorship than a democracy. On this point, the Democrats are wrong. It is the Congress that gave this power to the president.
The Military Construction Codification Act 1982 provides that the President may reallocate funds for military construction projects when declaring a national emergency "requiring the use of the armed forces".
One could argue that a border wall is not an emergency and that judges should arrest the president. The problem is that, traditionally, judges have tried not to question the national security judge's judgment for declaring a national emergency. Congress holds the real power here. If lawmakers think that a border wall is a "false" emergency, they can vote to overturn the decision. The National Emergencies Act of 1976 states that Congress may pass a joint resolution to terminate such an emergency declaration.
A strong argument against Trump's statement is that it does not require the use of the armed forces. The president is likely to argue that he must resort to the armed forces, otherwise the problems that he seeks to resolve with his statement will continue, so that the use of military personnel is necessary. This question is likely to be legally close, and it is difficult to predict how the judges will react.
Other critics claiming that the law on the codification of military construction violates the constitutional doctrine of non-delegation which forbids Congress to delegate its legislative power to the president. I strongly support the doctrine of non-delegation, see my amicus brief in the case pending before the Supreme Court. Gundy c. United Statesbut the law invoked by the president does not violate this doctrine, because the doctrine of non-delegation only applies to the rules of private conduct. As Judge Clarence Thomas, the most ardent advocate of the doctrine of non-delegation on the court, recognized in DOT v. Association of American Railroads (2014), "The core of the legislative power that editors sought to protect from consolidation with the executive is the power to make" law "in the Blackstonian sense of the generally applicable rules of private conduct."
The discretion given to the president as to the functioning of the executive or the way the money is spent is simply left to the chief executive to exercise his default control over his subordinates. The very first credit bill hardly limited the way the money would be spent outside the department to which it was assigned. Likewise, this congressional authorization is constitutional.
Another concern that the President should be aware of is the use of the eminent domain, the power of the government to seize property for public use. Only the Congress can authorize the president to seize property, and he certainly has not done so in this case. Two-thirds of the land along the border is owned by individuals who may not want a protective wall on their property. The president does not have the power, under the authority that he has relied on until now, to take their lands. He can, however, negotiate to buy their land with the newly available funds.
In addition to the current dispute over the border wall, representatives of both political parties have expressed concern that a future president may declare a national emergency on other priorities for which he can not obtain parliamentary approval, such as fire or climate change. A president may declare such a national emergency, but the additional powers conferred on the president by declaring a national emergency are limited. Even with a declaration of national emergency, no law gives the president the power to seize firearms or other private property. Even if a law stipulated it, it would violate other constitutional provisions, such as the performance clause or the acceptance clause.
Contrary to Democrats' claims, this national emergency declaration seems to be legal. That does not mean it's a good public policy, a good precedent, or it's preventing Congress from simply reversing the national security statement, as it has the power to do. But Democrats should think twice before declaring hastily that the president's action is illegal or unconstitutional. This could mislead Americans to critical decisions made by their representatives and further undermine their confidence in our system.
Devin Watkins is a lawyer at the Competitive Enterprise Institute and author of a brief presented to the Supreme Court, which advocates a strong doctrine of non-delegation..
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