Executive Power

The Perils of Trying to Use Emergency Powers to Build Trump's Wall

A summary of the reasons why Trump lacks the power to use emergency powers to build his border wall, and why it would cause great harm and set a dangerous precedent if he did. Other than that, it's a great idea!

|The Volokh Conspiracy |

Creative Commons/Tony Webster.

News reports indicate that President Trump intends to try to use emergency powers to appropriate money and seize property for his border wall, because Congress was unwilling to give him more than a small fraction of the funds he wanted. In several previous op eds and blog posts, I explained why he lacks the legal authority to do that, and why it would set a dangerous precedent if he managed to get away with it.

In a January op ed in USA Today, I discussed the relevant legal issues, and the potential for setting a dangerous precedent:

Poorly drafted laws give the president a wide range of easily abused emergency powers. Even if he can declare a "national emergency," however, that does not mean he can use it to pay for and build a wall….

Some point to 10 U.S.C. 2808 and 33 U.S.C. 2293 as possible justifications. But Section 2808 states that, during a "national emergency" that "requires the use of the armed forces," the president can reallocate defense funds to "undertake military construction projects … that are necessary to support such use of the armed forces." No threat posed by undocumented immigration "requires the use of the armed forces," and it is hard to see why a wall is "necessary to support such use."

In fact, as Yale Law School professor Bruce Ackerman explains, longstanding laws bar the use of troops for domestic law enforcement (including enforcing immigration law).

Section 2293 also only applies to a war or emergency that "requires or may require use of the armed forces." Another federal law allows the military to condemn property for various purposes, such as "fortifications." But that only extends to projects for which funding has been appropriated by Congress….

Even if the president can use emergency powers to get funds, that does not mean he can seize property by eminent domain. The Supreme Court has long held that the use of eminent domain must be expressly authorized by law. No emergency law expressly permit the use of eminent domain for border walls not otherwise authorized by Congress.

Building Trump's wall requires using eminent domain on a massive scale. A third of the needed land is owned by the federal government. The rest would have to be taken from private owners, Native American tribes and state governments, many of whom are unlikely to sell voluntarily.

The result would be one of the largest federal condemnations in modern U.S. history….

If Trump succeeds in using emergency powers to build the wall and seize property through eminent domain, future presidents could exploit this dangerous precedent. They, too, could declare a "national emergency," and then divert military funds and take private property without congressional authorization.

Republicans who cheer Trump now will regret it if the next Democratic president uses the same powers to declare that climate change is a "national emergency" and then allocate funds and take land for the gigantic "Green New Deal" program many progressives advocate. Climate change is a more plausible menace to national security than undocumented immigration.

If Trump succeeds, presidents could use the same ploy almost any time they want funds or seek to condemn private property for purposes Congress has not authorized, so long as there is some vague security pretext.

While Trump deserves to lose in litigation over the legality of building the wall by using emergency powers, the outcome of such litigation is somewhat uncertain. Administration lawyers may have come up with creative legal arguments that outside observers have not foreseen. In addition, courts all too often give presidents undue deference on security and immigration issues.

I am far from the only observer to warn against the dangers of using emergency powers in this way. Nor is concern about the risk limited to those (like myself) who oppose the wall on grounds of morality and policy. A number of principled conservatives who are far more supportive of the wall than I am nonetheless warn against the dangerous precedent that would be created if Trump succeeds in using emergency powers here. I discuss their views here.

If Trump's emergency power strategy succeeds, it would also threaten the property rights of hundreds or even thousands of people who own property near the border. Many are likely to have their land seized by the federal government through the use of the power of eminent domain. I discuss the harm likely to be caused by that in this Washington Post op ed, written last month:

Trump cannot acquire the land he needs without forcibly displacing large numbers of property owners by using eminent domain. That inevitably threatens the property rights of hundreds, perhaps thousands, of Americans.

Less than one-third of the needed land is currently owned by the federal government. The rest — as much as 1,300 miles — is held by private owners, Native American tribes and state governments, many of whom are unlikely to sell voluntarily. Even if the wall does not cover the full 2,000 miles because it excludes some areas, such as those that have "natural" barriers, many property owners will have to be displaced. There is no way to build an extensive continuous wall without that….

To get that land, the government would have to resort to eminent domain: a power that allows the state to seize property from unwilling owners. The result would be one of the largest federal condemnations in modern U.S. history. In Texas alone, there are some 4,900 parcels of privately owned land within 500 feet of the probable route of the wall….

Under Supreme Court precedent, owners of condemned property are entitled to "fair market value" compensation: roughly, the price the land would go for if sold on the open market. But studies show that owners often don't get the compensation that the law requires. That is particularly true of those who are poor or lack legal sophistication. Government officials often shortchange such people by using pressure tactics to get them to sell at below-market prices.

Such abuses were common in takings for previous, much smaller border barriers….

Even when owners do secure market-value compensation, that often fails to fully offset their losses. Many understandably value their property above its market value. Often, that's why they hold on to it in the first place. Consider, for example, longtime homeowners or businesspeople who have developed close ties with customers and neighbors in a community. Those losses remain largely uncompensated….

I will likely have more to say about Trump's effort to use an emergency declaration to build the wall as we learn more about his exact plans. The issue will almost certainly wind up in court, and could well result in a prolonged legal battle.

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  1. While Trump deserves to lose in litigation over the legality of building the wall by using emergency powers, the outcome of such litigation is somewhat uncertain. Administration lawyers may have come up with creative legal arguments that outside observers have not foreseen. In addition, courts all too often give presidents undue deference on security and immigration issues.

    So you admit that it is legal but don’t like it and think the law should be bent to fit your prejudices. Don’t we all.

    And the idea that the wall will “displace people” in large numbers is an absurd lie. No one lives right on the border. The wall will mostly go through uninhabited land. And that fact that so much of it is owned by the federal government means that the litigation over it will delay it very little if at all. The wall can be built on the federal portions while it is being litigated otherwise.

    You also fail to mention that many land owners will happily sell. A nice check from the federal government for land that you don’t use and to build a wall that will get drug smugglers and immigrants to cross elsewhere will be quite an inticing deal for most people with land on the border. The number of land owners who will actually sue and object to selling is likely to be fairly small. That fact will not stop Somin from calling it all a land seizure never mentioning the fact that most people gladly sold and would have sold without the use of ED.

    1. “So you admit that it is legal”

      I didn’t see anything in this article that admits that it’s legal.

      And it’s gonna be tied up in court past whenever the next presidential inauguration – whether it’s Trump or someone else. I spend a good portion of my career dealing with landowners in South Texas, including those who own ranches along the border, and I guarantee that those folks are going to fight him tooth and nail for their land. Even deep red Texans who would otherwise be wearing MAGA hats.

      1. The language I quoted admits that it is legal. He says the arguments are compelling. He just calls them “creative” because he doesn’t like them but he admits that they are likely to prevail.

        And it is not going to be tied up in the courts sufficient to stop the construction of the wall. He already has $1.9 billion to start doing it right now. And as Somin notes a large part of it will be across federal land. Congress can’t challange the reprograming in court. And no one else has standing. The only legal challange is going to be for the use of ED. And that will only cover those land owners who don’t want to sell and challange the project. And it will have no effect on the wall being built on federal land.

        You don’t understand what is going on here and are gaslighting yourself. A huge portion of the wall is going to get built pretty quickly and the rest will eventually be built. Get over it.

        1. If you have to completely change what you’re quoting to make it say what you want it to say, then odds are it didn’t say that in the first place. “Administration lawyers may have come up with creative legal arguments” does not mean “It’s legal,” any more than saying “You never know what happens once you get into court” means “My client is in the wrong.”

        2. A huge portion of the wall is going to get built pretty quickly and the rest will eventually be built. Get over it.

          Why would ‘the rest eventually be built?’

          There aren’t enough half-educated, backward bigots in America — especially after four years of improvement in America’s electorate — to give Trump much chance at a longshot run through the Electoral College. The next president seems more likely to be one who would tear down border wall than one who would build border wall.

          Most Americans seem likely to be interested in punishing Trump’s base after Trump leaves office. Tearing down any wall that is built with a phony emergency declaration might be attractive to the next Congress and administration.

          1. >A huge portion of the wall is going to get built pretty quickly

            What makes you think that the same way Trump likes to undo what Obama did, the next Democratic administration won’t simply tear it down. That way us tax payers can pay to both have it put and torn down?

            1. Sorry, replied to wrong individual.

            2. The exact reason they don’t want it built in the first place, is that tearing it down would be bad optics.

              You can shut down regular enforcement relatively inconspicuously, but when you tear down a wall on the border, it’s kind of difficult to disguise why you’ve done it, And the left doesn’t want to publicly admit they WANT illegal immigration.

              1. Putting bigots in their place is a great look . . . well, maybe no so much in Mississippi, Idaho, Alabama, and Wyoming — which is, what, one percent of America’s population (or is that one percent of California’s population)

      2. , including those who own ranches along the border, and I guarantee that those folks are going to fight him tooth and nail for their land. Even deep red Texans who would otherwise be wearing MAGA hats.

        I am going to go out on a limb here and say you have never been to Texas much less the border in your life. Those ranches are enormous. And I know you think Mexicans are sacred and could never do anything wrong but the truth is the drug smuggling and the immigrants are a fucking menace. Most of the people who own land on the border would give some of their land away to build a wall.

        And it is just a few acres along the border. Do you think they are taking people’s entire ranches? Are you that fucking stupid? I think you might be.

        1. “I am going to go out on a limb here and say you have never been to Texas much less the border in your life.

          God you’re a fool. My family moved to Houston in early 1974 when I was in high school And I’ve lived in Texas ever since. Graduated high school in a suburb of Houston. Got an engineering degree from a public university in Texas. Worked in Dallas, Corpus, San Antonio, and back to Houston. Retired and still live in Texas. All of my children went to college in Texas. Moron.

          “Those ranches are enormous.”

          Yep. And the people that own them are frequently the 4th or 5th or higher generation of the family that owned the place. They see their land as a family heirloom that they’ve been entrusted with. They aren’t going to be keen on permanently giving up a portion of it for any reason.

          “I know you think Mexicans are sacred”

          Please point to one post where I’ve ever said that.

          “Do you think they are taking people’s entire ranches?”

          I’ve been involved in condemnations. I’ve been involved in negotiating surface use agreements with landowners down there.

          You need to get off of Trump’s knob because it’s making you crazy.

        2. Oh, and the fact that the ranches are so big means that the owners have really deep pockets. And really, really good lawyers. They’ll tie the feds up for years.

          1. Undoubtedly some of the property owners along the border will be eager to sell, or at least grant an easement. Some of them will be opposed.

            There will be enough of the former that the construction can get underway, and as more and more of the illegal alien traffic is funneled through the back yards of the latter, some of them will change their minds.

            And many of those simply concerned about having access to the water along the border for livestock can be bought off by the provision of wells and ponds along the wall.

            IOW, it’s not the deal breaker you want to make it out to be, even before eminent domain enters the picture.

            1. “and as more and more of the illegal alien traffic is funneled through the back yards of the latter, some of them will change their minds.”

              No, they won’t. These people have been dealing with illegal immigration for longer than you’ve been alive. Is it an irritant? Sure. Is it enough to make them give up part of a ranch that’s been owned by their family since the 1880s? No way. And don’t forget how hostile these people are to interference by the government, regardless of the team that is currently running the government.

              “And many of those simply concerned about having access to the water along the border for livestock can be bought off by the provision of wells and ponds along the wall.”

              And now you’re engaging in belief in unicorns in the same manner as AOC and her New Green Idiocy. We’ll simply make a large supply of potable water appear where it doesn’t exist. Sure.

              1. No, what I’m doing is recognizing that people have diverse interests and opinions.

                People who own land along the border aren’t manufactured to identical tolerance in some factory somewhere, they are each of them different.

                Some will be eager for a wall.

                Some will be absolutely determined to block one.

                And most? They’ll be somewhere between. amenable to compromise, able to be bought off.

                1. I know dozens of South Texas ranchers. Spent 30+ years working with them.

                  I’d suggest you go meet some of them before you draw conclusions about them.

                  1. Just a practical matter, how land can a wall take up? A few hundred yards at the most if it includes a frontage road and some other stuff. In all, space-wise, it is nothing to get upset about unless it interferes with access to water for your cattle.

                    1. Which is why I suggested that in such cases they could provide wells or ponds for watering the cattle.

      3. He admitted it was probably legal from a legal realist standpoint, that the Supreme court would probably rule in Trump’s favor.

        I understand the argument that there isn’t really an emergency, (As opposed to there being an ongoing emergency that’s just been neglected until it’s almost too late.) but I’d ask:

        If you have a law granting the President power to do this and that in the event of an emergency, it must say something about who decides if there’s an emergency. Is it the editorial writers of the NYC? Random 9th circuit judges living in Hawaii? Legal bloggers?

        I’m just going out on a limb here, but it might be the President.

        1. Watching Trump fans stammer and sputter after another president declared a national emergency with respect to health care, voter suppression, firearms, or a similar subject might be almost enough to make such a rash action worthwhile.

          1. I basically never stammer. I will own up to being a bit dyslexic since the chemo, though. “Doesn’t penetrate the blood-brain barrier” my ass.

            1. I will hold a kind thought for you concerning your health, Mr. Bellmore.

              1. Well, thanks. You’re not a total asshole, I’ve noticed, and I’ll occasionally defend you on that basis. You might tone down the “bitter clinger” rhetoric, though, and accept that people can actually legitimately disagree with you.

                Not doing to badly right now, except for the neuropathy and dyslexia most of the chemo side effects are done with. And it’s possible the dyslexia is just due to being 60…

                1. I do not know what neuropathy is but if it is bothering you I hope the situation improves greatly and quickly.

                  I worked on a dyslexia research project for a year, 40 years ago (as an exceedingly small part in a large, successful study). I hope that situation improves for you, too.

        2. Which of course you will support when the emergency, declared by the next President, is “there are too many guns, therefore I am creating a Gun-Confiscating Task Force with Pentagon funds.”

          1. You might want to actually read the Emergency act. It doesn’t permit a President to do anything he feels like in an emergency, it’s quite limited.

            And one of the things it doesn’t permit a President to do is violate constitutional rights.

            1. I have read it and don’t see any such limitation. And if you mean “no statute can allow that,” the president can just as well say “I don’t think this is a violation of constitutional rights.” Either the court is going to review that, and the underlying assertions about a national emergency, or it isn’t. I don’t see why you think the court can review one and not the other.

              1. “And if you mean “no statute can allow that,” the president can just as well say “I don’t think this is a violation of constitutional rights.” ”

                Yes, that is their take on the matter: That banning guns doesn’t violate the 2nd amendment, because it’s a ‘right’ to be armed in such manner as the government directs you to be armed, when the government wants you to be armed.

                They lost that fight over the meaning of the 2nd amendment, and I expect, barring Court packing, they’ll continue to lose it.

    2. Administration lawyers may have come up with creative legal arguments that outside observers have not foreseen.

      I think that Ilya is referring to creative legal arguments like this one:


      8 U.S. Code ? 1182 (f) Suspension of entry or imposition of restrictions by President

      Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

      http://www.law.cornell.edu/uscode/text/8/1182

      1. What does that have to do with building a wall?

        1. Forget it. He’s rolling.

          1. I think he’s just demonstrating that Ilya tends to lose his mind when the topic is immigration, and dismiss as unforeseen the most obvious legal arguments.

            His legal competency declines on topics where he’s this obsessive.

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  2. In addition, courts all too often give presidents undue deference on security and immigration issues.

    You weren’t saying that when the courts let Obama get away with DACA. It takes a remarkable amount of shamelessness for anyone associated with Volkh to complain about judicial deference to the exectutive on immigration issues. I will never understand the appeal of being a hack. Wouldn’t it be more fun to just be honest and let the facts and arguments fall where they may?

    1. You know that a Federal District Court in Texas enjoined the Obama administration from implementing DACA, right/

      The factual premise of your statement is 100% wrong.

  3. I think you overstated your case generally regarding limits on the President’s authority but primarily this post errs by failing to recognize the context in which the President intends to exercise his authority in this case. The national emergency is taking place at the border and the President is not without some inherent constitutional authority to defend and protect the border. Pipelines even need a Presidential Permit to maintain/operate border facilities. Ask TransCanada. And whether and to what extent the military is needed at the border would seem to be a matter left to the discretion of the Commander in Chief, notwithstanding that a Yale law professor might disagree. And I believe that the Military Construction Codification Act provides adequate authority to condemn land as required.

    1. All true. And Somin admits that it is. He just doesn’t like it.

    2. What’s even stranger is Somin says this would set a bad precedent when the precedent was established decades ago. Somin just goes full idiot on border issues.

      1. Prof. Somin is a libertarian and not a bigot. Most Conspiracy commenters are destined to dislike his positions.

    3. The authority here isn’t inherent, it’s statutory.

      Also, I don’t think anyone is disputing the authority entirely (as far as I can see, anyway). The question is whether that authority would cover this instance.

      1. No, in the context of this particular emergency, defense of the borders of the United States, it happens to be both. And it is this context that distinguishes this particular exercise of emergency authority. A context the author of this article fails to acknowledge.

        1. There is no emergency. Pay attention to something besides Fox and trump’s tweets and you’d know that.

          1. Ignoring the personal invective, I would say (as I’ve noted in other comments) that it’s a good thing that we have only one Commander in Chief who can take unilateral action when the borders of the U.S. are threatened.

        2. This is probably the key point: The President already has CinC authority, and the NEA allows him to determine that the shuffling of budget line items are required to respond to the situation. IANAL, but I feel like this is going to be one of those 8-1 or 9-0 SCOTUS decisions that really comes as a wake-up call to people to get out of their epistemic bubbles.

          As to whether is a *good* policy politically, that’s an ENTIRELY separate question. Never should we confuse the two.

        3. There is no inherent authority to appropriate funds. In fact, the Framers knew English history and knew that the power of the purse was the best control of an Executive and specifically said that no funds shall be appropriated from the treasury except as directed by Congress.

          So this would be (in Constitutional terms) the absolute lowest ebb of the President’s power — a situation in which the Constitution expressly vests the power in question to a coordinate branch of government.

          No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law

  4. This post uses the term “principled conservative”. Other than the folks who post on this Forum it is not clear that such people exist

    Anyone who reads the opinions in Youngstown Steel will see that unless the Supreme Court overrules that decision there is simply no legal way the Administration can reallocate the funds to build a wall. In addition, the supreme principle of conservatism is the opposition to centralized power and even more than that, the opposition of the executive taking powers not enumerated in the Constitution. So this will be test of so-called conservatives, and if history is any guide most will fail that test.

  5. I take this rare opportunity to agree with Prof Somin about the undesirability of Presidents having, and using, wide emergency powers. But as I’m not an open borders monomaniac, I prefer to see this as an opportunity rather than as a disaster.

    First, the courts might rule against Trump setting all sorts of good precedents that would make it hard for future Presidents to abuse emergency powers. Surely it is a good thing that an abuse of emergency powers should come before the 9th Circuit during the Trump Presidency rather than during the Harris/Booker/AOC Presidency ?

    And should the courts rule that Trump’s plan is legal, what better opportunity for Congress to think again about its foolish delegation, and rein those powers in ? There will never be a better opportunity to get the Dems in Congress to vote to restrict presidental powers.

    1. PS One would think that, claiming an emergency, Trump would have better odds of getting SCOTUS to stay any temporary injunctions by the courts below than he might in other circumstances. Otherwise SCOTUS would look like they were agreeing that there was no emergency in advance of hearing the case.

      PPS I would have thought (IANAL) that Trump would have a better case that there was an emergency if he vetoed the funding Bill. No funds for protecting the border looks more like an emergency than some funds and a tiny bit of fence.

      1. Agreed, signing that atrocity is like agreeing with the priorities it embodies. And it basically declares that there is no emergency.

      2. If President Trump truly believes he has the authority to declare an emergency and divert the money, why would he need to veto the funding bill and put federal employees out on furlough again? Presidents sign things all the time they don’t necessarily agree with 100%.

  6. Gonna be awesome when President AOC declares a national emergency to take everyone’s guns, melt them down, and sell the scrap to fund late-term abortions at Planned Parenthood.

    1. Her (or Harris’ or Warren’s or Booker’s) national emergency will be to stop hydrocarbon production. And maybe another one to nationalize the health industry. Those are going to sting.

    2. I’ve seen this dumbass argument multiple times today. Can you show me which amendment Grant’s citizens the right to not have to look at border walls?

      1. Sure, we’ll discuss those amendments at the upcoming District Court hearing, which will begin quite promptly after the emergency is over.

  7. I’ve never understood why the Democrats are so opposed to securing the border. A few years ago they voted for a bunch of fence in a bi-partisan bill and I understand that would is not completely yet.

    It can’t be cost. The Federal Budget is $4.407 trillion Trumps 5 billion is something like a 0.012% of the budget. According to some the partial shutdown cost more than that, so giving in to Trup would have saved money if that was the goal.

    The fight should be over increasing legal immigration, which is a good idea but can’t get traction until the order is secure.

    1. They voted for it a few years back because they knew that voting for it wouldn’t result in it. It was all a show for the public.

      Now that Trump is in office, running on building it, and by all appearances meaning it, voting for a bunch of fence means GETTING a bunch of fence.

      And so they won’t vote for it now, because they never wanted it.

      Note, this reasoning applies to a lot of Republicans, too, which is why Trump was all along going to lose in Congress.

      And, no, while there’s a case for increasing legal immigration, (So long as it’s selective!) the illegal immigrants serve a very different purpose from the legal ones.

      You expect legal immigrants to be productive citizens, in fact, the more productive the better.

      Illegal immigrants are meant to drive up the supply of cheap labor, and exacerbate income inequality, so that business has a bunch of cheap laborers who are easily intimidated because they aren’t legal, and so that the Americans they displace from the job market will vote for Democrats in return for the dole.

      They wouldn’t serve that purpose if they were skilled and legal.

    2. Democrats didnt vote for any security. The law let a federal political appointee certify that measures had been put in place but didn’t actually require the measures. It is the same sleight of hand as 1986.

    3. Ilya is not a Democrat.

      As a (erstwhile) one, I can say I’m not opposed to spending $6BN on border security, or even the $30B that Schumer brought to the White House as part of a deal in which both parties got something they wanted.

      I am implacably opposed to two things: the first is (either party!) using a government shutdown as leverage. This absolutely needs to stop — if Congress and the President cannot agree on spending bills, the minimal adult thing to do is a CR that keeps the lights on while the political process resolves the disagreement.

      The second is appropriating money except as authorized by the legislature. As I said, if I were a Senator, I’d vote for it. But it has to be done through the branch of government charged with appropriating funds.

      1. Yeah, at one time I would have said he wasn’t, too.

        See what I said to Sarcastro below: You want to rein in Executive abuses of power, I’m with you.

        You want to rein in just Trump, without fixing the underlying problem, so things can go back to normal after he’s gone? Screw that.

        He gets every last bit of illegitimate power to exercise that any President would. Not one iota less. You want him to have less, fix it in a way that will apply to every President going forward.

        Repeal the Emergency act. Don’t just get some TrumpLaw ruling that he, and he alone, isn’t entitled to use it.

        1. There’s no magic “eliminate all abuses of executive power” button.

          I mean, you seem to think DACA was an enormous abuse of power. That didn’t involve an “emergency” declaration. What’s the generally applicable solution that would make similar programs unavailable?

          1. Yes, obviously Presidents are capable of abuses of power that don’t involve national emergency declarations. The nice thing about national emergency declaration abuses of power is that they actually have a statutory basis, which means that they can be ended by repealing a statute.

            Stopping abuses like DACA would require putting teeth into the Take Care clause, which would be no simple matter.

  8. Only prediction I’ll make is:

    ?somewhere, sometime within the next year or two, a limited section (somewhere from a 1/4 mile, to several miles) of something Trump can call a wall will be built.
    ?It will likely be a section of security barrier that has already been already approved, funded, and planned; or it may be new a fast-tracked proof-of-concept demo project from the $1.375bil of border security funding approved today.
    ?It will be on land that is already federally-owned.
    ?Trump is going to create a video of himself standing in front of the newly-constructed wall section, saying “See? I won!!”
    ?His base will believe him.

    1. You forgot about him waving a great big (not actual) check from Mexico.

      They’ll buy that, too.

    2. Wow, I want the 30 seconds I spent reading that back.

    3. Wow, I want the 30 seconds I spent reading that back.

      1. …not to mention the two minutes you spent trying to reply.

    4. He got $1.5 billion to build the wall from Congress. That is going to get built.

      1. I think the big problem is overuse of the singular, as in THE wall.

        I agree with you, there will be some wall and other phycal security barrier built. As there was under all past administrations, as would have been under any other Republican or Democratic President elected in 2016, and as there will be in any future adminitration of either party.

        But the only reason this is an issue of any controversy at all, is the President’s use of THE wall as a symbol of his manliness and authority, and as a MacGuffen to please the most rabidly emotionally obsessive parts of his xenophobic/racist base.

        During the regular budget cycle last year, the administration requested $1.6bil for border security, including physical barriers. There was no objection to that and it would have eventually flowed through the appropriations process and spent.

        So now, same thing has been approved but the amount cut back to $1.375bil. Yup, that will be spent but, as the term is used by Trump, THE Wall will never be built. Congratulations Mr. President.

  9. For those landowners that don’t want to sell, no problem, build the wall around them. Then they can enjoy the open borders on their land.

    1. “We don’t want the Mexicans here, so to stop it let’s just cede some border territory to Mexico!!!”

      Not sure how many dimensions are in the chess you’re playing but it seems like quite a few.

  10. This just seems bizarre. A border installation seems the quintessential foreign policy or national defense issue, implying that the Supreme Court will give maximum deference to the CinC and Executive branch. On top of that, the NEA clearly envisions allowing military-focused construction, and the deployment of any troops establishes whatever further nexus one might require.

    In addition, Congress provided for its own Legislative oversight mechanism and can end the Emergency with a veto-proof override. From a legal perspective, how is this not an open and shut case?

    Whether it’s a good idea or not, on the merits or just politically, is an open question. Personally, I hope it leads to a bipartisan adjustment to the NEA to clarify things a bit. But the future of this specific declaration seems pretty clear. (IANAL)

    1. From a legal standpoint it’s open and shut. From a TrumpLaw standpoint, some judge in Hawaii is going to enjoin him in 3. 2. 1.

      1. The Hawaiian district judge thing will be the hilarious part.

        Hawaii doesn’t even share a state line with Mexico where this increased border security is desired.

        These biased Lefty judges are just shameless for their disdain of actual constitutional powers.

      2. Again, all who disagree with Brett’s take are in bad faith, before he even knows them.

        1. Yup. And he don’t need no steenking legal training to be absolutely and clearly correct on all legal matters.

    2. At the same the Executive might have undermined his case just a bit by threatening to declare an emergency for a few months now.

      That’s the main problem the administration will have in court — once you’ve threatened Congress with the emergency and they’ve passed (different) legislation, the underlying justification for the NEA (giving the President power to act quickly where Congress may not have time to react) no longer holds.

      IOW, there is substantial deference, sure, but the Executive can still sabotage its own case.

      [ And yeah, some bipartisan adjustments and clarification to the NEA would be great. ]

      [ Also, I wouldn’t bet the administration loses either. It seems to me a colorable dispute over whether the President’s own words and Congress’ intervening actions make a difference here. ]

  11. “No threat posed by undocumented immigration ‘requires the use of the armed forces,'”
    This is a declaration upon which much of your argument hangs, and it is a rather presumptive one. It boldly uses absolute terms despite your lack of access to information possessed by the Executive Branch.
    And just a nit – but why are you afraid, on a legal blog, to call it “illegal” immigration?

    1. “Illegal alians” feels prejudicial to some.

      “Undocumented immigrants” feels too precious.

      I like “unauthorized immigrants”.

      -dk

      1. Dick, if you are going to make a habit of choosing non-inflammatory language then you are really not going to fit in around here.

    2. It’s not a nit and is actually the very soul of the issue.

      1. Does the President (and not just Trump) have the authority to declare a national security emergency in this situation (border control, illegal immigration, etc.)? I mean what are the legal standards to declare an emergency (or is it just what the Presidents says is an emergency).

      2. If the President declaration is determined to be legal, is the use of the armed forces the appropriate (i.e. legal) response?

      Let’s state that 1. is yes (although I don’t know if that’s true), I can’t see how the use of the armed forces is the appropriate (i.e. legal) remedy. It’s a law enforcement issue (if 1. is true) but not military issue.

      1. It’s people entering the country contrary to our laws and public policy. They don’t actually have to be wearing uniforms to treat that as an invasion.

        I mean, if Mexico sent their Army into California, and had them burning houses, that would be arson, a violation of the law, but you could still sic our military on them. Right? Same principle, there’s a bit of overlap between law enforcement and national defense.

        You’d be on much stronger grounds if he were going to have the National Guard tracking down and apprehending illegal immigrants in the interior of the country. But stopping people from crossing the border? No problem at all.

        1. C’mon, that’s weak.

          Mexico sending their Army into any US territory (without any legal authority [e.g. treaty obligation]), would be a belligerent act by a foreign government, and the US would have all moral, political, and legal authority to respond accordingly.

          Also, invasion means “incursion of an army for conquest or plunder” and I don’t see anyone attempting to conquer or plunder the US.

          1. in?va?sion
            /in?v?ZH?n/
            noun: invasion; plural noun: invasions
            -an instance of invading a country or region with an armed force.

            – an incursion by a large number of people or things into a place or sphere of activity.

            – an unwelcome intrusion into another’s domain.

            Poor apedad.

            1. Context son.

              Context.

        2. And both Houses of Congress would vote him an AUMF before he even asked for it, thus short-circuiting (heh) any dispute over it by an overwhelming show of unity.

        3. That’s pathetic, Brett.

    1. That’s the real problem here.

  12. “Administration lawyers may have come up with creative legal arguments that outside observers have not foreseen. In addition, courts all too often give presidents undue deference on security and immigration issues.”

    I feel the former is unlikely as it appears the creativity of the administration’s lawyers is limited to the “I’m not touching you” variety utilized by children holding a finger a half-inch from another child’s nose. But unless there is some limiting factor written in somewhere, I can definitely see the Supremes upholding. And quite possibly by a greater than 5-4 margin, too. The problem, as has been stated many times, is our system relies on unwritten rules ? call them “norms” ? as much as written rules to guide us. When someone decides “norms” no longer apply, the flaws in our system become exposed and we’re left to either catch up quick, or watch it all come unglued.

    Still, if this is the way it will be then I, for one, look forward to finally seeing future democratic administrations dedicating resources to address several real national emergencies. And with nary a McConnell to interfere. Silver linings!

  13. Isn’t it clear Trump is doing this because Congress failed to act as he wanted?

    That’s the issue – it’s not about the merits of a wall or a novel application of the National Emergencies act, or the situation on the border, it’s about a President who, having explicitly failed to get what he wanted from Congress, does it anyway.

    This is not Obama’s pen and phone more modest agenda after Congress rebuffed him, this is full-on ignoring the will of Congress, to whom the Constitution gives budgetary authority.

    1. I was with you until that last paragraph.

      No, actually, this IS Obama’s pen and phone, full-on ignoring Congress’s refusal to enact what he wanted.

      You want to rein in Presidential abuses of power, I’m with you.

      You want to rein in just Trump, then go back to normal as soon as he’s gone? Screw that, I’ll fight you every inch of the way.

      Trump gets every power any other President would be allowed to exercise, in full measure, and if you don’t like that, reduce the powers, don’t make a special exception for Trump.

      1. Here’s how I distinguish the two situations:

        Obama’s DACA was much more modest than what he has passed to Congress.
        Trump, by contrast, is going even higher than the apparently arbitrary number he sent to Congress.

        Obama looked at the contours of his authority and, without declaring an emergency, acted within them as he understood it. Some courts disagreed, but he had moderated his expectations after Congress told him no.
        Trump didn’t bother looking at legal bs like that, and declares an emergency to do what he wants, increasing his expectations now that he was free from asking Congress what to do.

        The best Obama overreach argument, IMO, is Syria. Which I said was bad at the time and still think is top three worst things Obama did. But even that was more about Congressional silence than the situation here with explicit Congressional rejection.

        1. “Obama’s DACA was much more modest than what he has passed to Congress.”

          Doesn’t matter. He asked Congress to enact a law. They refused. He implemented it anyway.

          “Obama looked at the contours of his authority and, without declaring an emergency, acted within them as he understood it. ”

          Obama looked at the contours of his authority, publicly stated it didn’t extend that far, and then changed his mind when he didn’t get his way. That’s actually worse than if he’d never admitted he hadn’t had the power, because there’s no doubt he knew he was acting improperly.

          Let me be as clear as possible: Trump is as much President as Obama was, is entitled to every last power Obama had, including the ones Presidents shouldn’t have,, and if you don’t like Trump having a power, it has to be taken away from every President.

          Democrats want to treat Trump as an aberration, a special case, to be dealt with, and then things go back to normal when a Democrat is in the White house. NOT GOING TO HAPPEN.

          Trump is not in any way, shape, or form a special case. He’s just a President Democrats don’t like, because he wasn’t their candidate.

          You want to fix the balance of power? Fine, I do, too.

          You want to just do something about Trump? Nope, not going along with that.

          1. He asked Congress to enact a law. They refused. He implemented it anyway

            No, he didn’t. He implemented a different policy than the one he was asking for.

            Trump is as much President as Obama was, is entitled to every last power Obama had, including the ones Presidents shouldn’t have
            That’s…what? You police your own side, you don’t let them go wild in the hopes the other side eventually polices theirs. This is pure partisanship before integrity, and dressing it up as some way to get Dems on board ignores every time something has happened in the past.

            Democrats want to treat Trump as an aberration, a special case, to be dealt with, and then things go back to normal when a Democrat is in the White house. NOT GOING TO HAPPEN.
            Not getting less crazy.

            He’s just a President Democrats don’t like,
            This emergency thing rather says differently.

            1. You don’t police your own side in a knock down drag out fight where the other side isn’t policing their’s.

        2. Both of y’all are doing the “it’s fine when my side does it, it’s terrible when the other side does it” thing.

          Our politics are failing because there are no people of principle involved. The reason that there are no people of principal involved is because people like you won’t force your side to act with principle.

          1. No, it’s not fine, but the only hope of doing something about Presidential abuses of power is to get the Democrats on board with doing something about it.

            And since they don’t give a bucket of warm piss about abuses of power by their own Presidents, the only leverage we have to get them to care enough to get on board is letting a Republican President abuse power until they agree to a real fix.

            And thus I refuse to support any Trump specific fix. It’s got to be a general fix going forward.

            Would I take this position if the general situation were just peachy, and then Trump comes out of the blue abusing power? No. But that’s not the situation, he’s no worse than any recent President, and better than some, in terms of abuse of power.

    2. Exactly. And I am waiting with baited breath for the Originalist argument in support of Trump’s action.

      1. Originally, the founders wanted Washington to serve as president for life, which is proof they wanted a king under a different hat.

        That should work, no?

        1. Yeah, would be interesting to still have Bill Clinton as President, with Obama wating in the wings for his 30 years.

  14. Poor Lefties don’t even understand what happened.

    Trump got Congress to bi-laterally approve border fence money, so now when he claim an emergency about border security he can say “see, even Congress thought it was important.”

    1. Wait, if you give me $5, I can steal $5,000 and say you agreed to it because you recognized that giving me money was important?

      Can I have $5?

      1. That he has $5 to lend, let alone $5K to steal, is very much in question.

  15. Liberals want tens of millions of third world mestizos for the votes. It’s that simple. These people are genetically low IQ and unskilled, and thus will always be the recipient of (and support) transfer programs.

    1. It all started when we let those damned Papist Irish into this country in the 1840s. And it continued, of course, when we recognized that people of African descent were actually human beings and, therefore, citizens.

      1. Giving American blacks with 85 IQs the vote was a huge mistake. The Irish are not genetically low IQ.

        1. Racism on the right: a big myth!

          1. As is the fallacy of assuming that one commentator at Reason speaks for the entirety of the right.

            1. I believe the general flavor of Conspiracy content provides legitimate insight with respect to current conservative and Republican thinking.

          2. Do you seriously deny the fact that intelligence is not equally distributed among the races?

            1. I’ll take “Not Dignifying That With A Response” for $100, Alex.

        2. After the Civil War was over, and slavery was no more, what should have been done in your alternate universe.

          1. I would have made black repatriation mandatory, or at the very least, performed mental acuity tests on the now freed slaves and sterilized those with below average ability.

            1. Ok, that’s stupidly offensive, or offensively stupid, or maybe both. Even if that is your stich.

              You couldn’t repatriate most of them, because they were born here.

              And “freed” and involuntary sterilization is kind of a contradiction.

            2. Mental acuity tests on a group of people (for the most part) not given any education on purpose, in an era before IQ tests even existed. Mm-kay.

              Sending former slaves to Africa would have been, in most cases, a death sentence. They had neither the skills nor abilities to go from a 19th Century world to a pre-industrial one.

              Do you think, then, that there was the appetite for funding massive and fighting for the land to create repatriation colonies. Because that’s what they would have been to the people in Africa, colonizers, no matter the color of their skin.

              1. So what are your solutions? That we perpetually have a genetically incapable, inclined to violence and disorder group that will always need our money, and there’s nothing we can do about it?

  16. File this under WHO CARES anymore. Bush abused executive power, then Obama did. This all could have been avoided if the Democrats would have done what they were elected to do – govern instead of whine and make baseless statements about how “walls are immoral”. So who really care? I certainly don’t. What I want is MORE TRUMP!

    1. Darn them for not fixing everything with control over one house of Congress!

  17. “I want to do it faster. I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster…. I just want to get it done faster, that’s all.”

    -Trump, in response to a question about why he’s declared a national emergency

    Yep, that should help. Who wouldn’t want a client like Donald Trump?

    1. Well, at least he pays the bills on time…wait, hang on.

  18. 2293 seems completely misplaced. For starters, it talks about authorized civil works, military construction, and civil defense. In other words, it has to be previously authorized. The fact that it talks about stopping the spending on some projects in order to spend them on others tells me this statute is entirely about prioritization of resources. It also doesn’t authorize the use of eminent domain or even talk about land acquisition at all.

    2808 seems much closer and may very well be authorized. Certainly, a closer parsing of all the words in the statute would be needed to be sure. It also, notably, talks about “real estate actions” (i.e., eminent domain proceedings).

  19. Ilya Somin, Do you remember when you argued that DACA was constitutional because it could be easily reversed by a future administration?

  20. Somin: “Some point to 10 U.S.C. 2808 and 33 U.S.C. 2293 as possible justifications. But Section 2808 states that, during a “national emergency” that “requires the use of the armed forces”…Section 2293 also only applies to a war or emergency that “requires or may require use of the armed forces…In fact, as Yale Law School professor Bruce Ackerman explains, longstanding laws bar the use of troops for domestic law enforcement (including enforcing immigration law).”

    The primary duty of the military is to provide border security. As CiC, POTUS may use the military to shut down the borders to stop foreign invaders. Multiple POTUSes have mobilized the Guard provide border security against illegal immigration and smuggling, including installing physical barriers.

    The fact that Posse Comitatus prohibits the military from prosecuting illegal immigrants for violations of immigration law does not mean they cannot fulfill this mission.

  21. Somin: “The Supreme Court has long held that the use of eminent domain must be expressly authorized by law. Delaware, L. & W. R. Co. v. Town of Morristown, 276 U.S. 182 (1928). No emergency law expressly permit the use of eminent domain for border walls not otherwise authorized by Congress.”

    The cited Delaware decision involves the scope of an agreement between the property owner and a municipality, which is not analogous to the statutes at issue. POTUSes have frequently used the National Emergencies Act to seize the property of various foreign nationals. Thus, Trump using the NEA to perform the less invasive function of purchasing property through eminent domain would appear to be well within his powers.

    To the extent a court would disagree, Trump could use the fence appropriation in the FY 2019 budget to purchase the property and the funds transferred under the NEA to build the border fence.

  22. In general, I agree that there is a limit to why can be considered an “emergency.” Both immigration and contraband represent chronic policy issues amenable to a legislative solution, and do not resemble the sorts of one-time events that have been traditionally characterized as emergencies.

    On the public health front, courts have struck down public health board efforts to enact various “emergency” measures like bans on smoking and sugary drinks, on grounds that these sorts of bans represent policy decisions on chronic social issues of a sort requiring a decision by a legislature, and not the sorts of epidemics that public health boards have traditionally issued emergency regulations to address.

    This issue is similar. It is a long-term social issue, not a one-time emergency.

    Congress might be wise to explicitly narrow the circumstances emergency powers can be used in to prevent their being used in a situation like this in the future.

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