The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, the New York Daily News published my op ed on why "Using Emergency Powers to Seize Property and Build the Wall Would Set a Horrible Precedent." The topic may be even more relevant today, now that Donald Trump has said he will "almost… definitely" resort to emergency powers to build the wall if Congress does not give in to his demands. Here is an excerpt:
Last night, President Trump restated his desire to build a border wall, despite Congress' refusal to appropriate funding for it. Fortunately, he did not declare a "national emergency," as he had previously threatened to do. But administration officials indicate that option remains on the table if Congress refuses to give in to Trump…. The claim that emergency authority can be used to build the wall and seize property through the power of eminent domain is highly dubious. If the President succeeds, it would set a dangerous precedent.
One of the fundamental principles of the Constitution is that Congress is the only branch of the federal government that has the power of the purse. The President cannot spend money for purposes not authorized by the legislature. That rule prevents any one person from controlling the nation's public funds….
It is difficult to predict the outcome of a legal battle over emergency powers. Courts often give Presidents undue deference on national security and immigration issues. But, hopefully, judges will see the importance of strictly enforcing constraints on the exercise of dangerous emergency powers.
Even if Trump can use an emergency declaration to secure funding, that does not mean he can seize property by eminent domain. Supreme Court precedent states that the use of eminent domain must be "expressly authorized" by law. No emergency laws "expressly" permit the use of eminent domain for border walls not otherwise authorized by Congress….
If Trump succeeds in using emergency powers to build the wall and seize private property, it would set a dangerous precedent for future Presidents. They too could declare a "national emergency," and then spend funds to take private property, even without clear congressional authorization.
Conservatives who cheer Trump now may regret it if the next Democratic president uses the same powers to appropriate funds and take property for liberal policies. No president of either party can be trusted with such dangerous unilateral authority over public funds and Americans' property rights.
I wrote about the dangers of using emergency powers to try to build the wall here. In this post, I wrote about how Trump's plan to build the wall by using eminent domain is just one aspect of his generally awful record on property rights issues.