Border wall

Vox Symposium on the Legality of Trump's Plan to Use Emergency Powers to Build the Wall

A variety of legal experts weigh in on the subject, including me. Most conclude Trump may have the authority to declare an emergency, but not to spend funds and seize property for the wall.

|The Volokh Conspiracy |

Creative Commons/Tony Webster.

Earlier today, the Vox website posted a symposium in which a variety of legal commentators (myself included) consider the legality of President Trump's effort to use emergency powers to build his border wall. Most conclude that, while Trump may have the authority to declare a national emergency, that does not give him the power to spend money and condemn property to build the wall.

Here is an excerpt from my contribution:

This plan is illegal, and would set a dangerous precedent if it succeeds. Article I of the Constitution mandates that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." Only Congress has the power to make such laws. This vital rule ensures no one person can seize control of the nation's public funds.

To get around Congress, Trump seeks to use emergency powers. Under the poorly structured National Emergencies Act of 1976, Trump may indeed be able to declare an emergency at the border, even though there is no genuine crisis there. But it does not follow that he can therefore appropriate money for the wall. The NEA does not give him unlimited authority, but only a specific set of powers. None of them are broad enough to justify spending money on a border wall….

Even if Trump can use an emergency declaration to get the money he wants, that is not enough to build the wall. He also needs the authority to use eminent domain to seize land from numerous unwilling owners. Such authority must be expressly authorized by the legislature; it cannot simply be inferred. And there is no such clear authorization here.

Trump's attempt to use emergency powers is virtually certain to be challenged in court. While he deserves to lose, it is possible he could prevail, in part because courts often give the president undue deference on immigration and national security issues.

Should he win, it would set a very dangerous precedent. Future presidents, too, could use it to appropriate money and seize private property without congressional authorization, especially if there is some national security pretext for doing so…..

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  1. Truly misleading analysis as to the funding of construction at the border following a declaration of emergency under the National Emergencies Act of 1976. Is this post really claiming that a declaration of emergency under the NEA would not provide access to funds? Would this emergency declaration not allow the President to invoke the emergency military construction authority set forth in 10 U.S.C. ? 2808? The Congressional Research Service analysis would seem to indicate so. No power for eminent domain? If it is necessary, how about 10 U.S. Code ? 2663? And, again, no acknowledgment that the crisis is occurring at the border and the President has some authority and duty to protect the borders of the United States. The whole premise of this diatribe is to suggest that the declaration is somehow illegal or extra constitutional when in reality the author simple disagrees with how the President is exercising his lawfully authority.

    1. The Section 2808 argument is addressed in Somin’s full piece at Vox.

      1. Section 2808 is mentioned but I don’t see any serious analysis. The piece just declares the author’s personal opinion that “there is no emergency caused by undocumented immigration that plausibly requires the use of the armed forces, nor is a wall necessary to support such use.” (internal quotations omitted). But the opinion that matters here is the party empowered by Congress with authority to declare a national emergency under the NEA. That would be the President. And it is not domestic law enforcement (as claimed in the piece) for the Commander in Chief to use the military to defend the border.

        1. That’s a very important point. Many of the arguments come down to the author’s opinion that “there isn’t any crisis at the border” so it isn’t justified.

          The issue is, that’s an opinion. And you’re asking your opinion on it, to overrule the President’s opinion. Which…doesn’t work.

          1. The President’s opinion is that it is not an emergency. “I didn’t have to do this.”

            This is not an emergency, it is just the only way to build the wall.

            1. No, the President’s opinion is expressed by his declaration of an emergency. But I hope any legal challengers that manage to find standing rely on that argument. Good Luck.

              1. I certainly hope that one of the arguments is that the NEA is unconstitutionally vague.

                The idea that the Congress has delegated to the President appropriation powers during an emergency after denying him the specific appropriation is absurd.

                1. It’s not any more absurd than Obama “passing” DACA after Congress denied him the legislation he wanted.

                  I’m all for limiting the power of the executive branch. What I’m not in favor of, is only one party being able to use expanded power, and the other isn’t.

                  1. Not defending Obama, but it should be noted that President Trump’s order is fully authorized by statute(s) (and the Constitution), so the comparison is not exactly proper, other than as illustrating the difference between an illegal vs legal order.

  2. Should he win, it would set a very dangerous precedent

    And should he lose, it would set a very useful precedent. And should he win, then Congress can change the law to overturn the dangerous precedent.

    When you think of all the abuses of emergency powers that a President could try, it’s quite hard to think of a less dangerous test case than this one.

    1. The country seems ok with sending the military all over the world to protect our “interests”, yet we can’t send troops to the boarder to prevent folks from invading seems odd. I guess some think the migrants need to be carrying weapons to be considered invaders. Congress can repeal a bunch of laws if they don’t like the CIC from doing what they deem necessary.

  3. Everyone should take a deep breath and read (re-read?) the opinions of Justices Black and Jackson in the Youngstown case. Unless the SCOTUS is willing to overturn that decision the illegality of Trump’s actions are so blaringly obvious that not even his strongest sycophants could conclude otherwise.

    1. the illegality of Trump’s actions are so blaringly obvious that not even his strongest sycophants could conclude otherwise.

      You’re new here, I think. You will soon find it amazing what Trump’s sycophants will swallow.

      I mean, leaving illegalities aside, they already believe there actually is some sort of emergency at the border.

      1. You will indeed find that the president’s supporters will laud whatever he does regardless how ridiculous. And you will find that his critics will despise everything he does regardless of whether appropriate. We have reached a truly frightening state.

        1. And liberals lauded Newsom and other officials who illegally gave “marriage” licenses to homosexuals.

          1. STFU, ARWP.

            You are a useless idiot.

            1. He’s an imposter, is what he is.

            2. He is not wrong here. Illegal power grabs are only “bad” when the taste makers decide it is bad. There is no consistency.

      2. I live in Tucson. I’m a geologist and I work along the border. Unless you live and work here you don’t know what you are talking about.

        All of the following incidents occurred on U.S. soil.

        My drill crew had to quit working one night because spent rounds were falling around them from a firefight between cartels.

        My survey crew was shot at by men in fatigues- the responding border patrol said that the shooters probably believed the crew was planting sensors to detect movement.

        On two different times, I came face to face with men in black fatigues armed with AK 47s. They had backpacks and were headed south.

        I have seen the rape trees.

        Ranchers have shown me Korans and prayer rugs found on their lands.

        My mining claims are trashed with Mexican labeled food waste and human waste.

        My company has has over $100K worth of property stolen. Our buildings are constantly broken into. Ranchers have constant problems with things being stolen.

        I’ve see pictures a rancher took of Mexican Army vehicles escorting pickup trucks, five miles inside the U.S.

        If you talk to the Law Enforcement people with boots on the ground, they will tell you of the nightly firefights between rip crews.

        There’s more. These are my personal experiences.

        Yes, there is an emergency on the border.

        1. You’re like that guy who was in every battle in the Civil War.

          Ranchers have shown me Korans and prayer rugs found on their lands has been debunked by the WaPo, PolitiFact, others.

          If you talk to the Law Enforcement people with boots on the ground, they will tell you of the nightly firefights between rip crews.
          Nightly firefights would seem pretty easy to find proof of. Do you think Sicario was a documentary?

          I live in Tucson. I’m a geologist and I work along the border. Unless you live and work here you don’t know what you are talking about.
          I’ve talked to people who live in Tucson about the border situation, albeit in 2014. They say you’re full of it.

          I don’t usually call people on this blog liars, but this is just too much. What possessed you to BS like this?

          1. Then you are talking to to the open border groups.

            Nothing I present will change your mind.

          2. I don’t usually call people on this blog liars

            Up to a point, Lord Copper. This guy today and me a couple of days ago and pretty soon we’re taliking “usually.”

            Incidentally :

            Ranchers have shown me Korans and prayer rugs found on their lands has been debunked by the WaPo, PolitiFact, others”

            suffers from two structural weaknesses. It seems extraordinarily unlikely that the fact checkers have debunked Hunting Guy’s claim that ranchers have shown him these things. They may have had a go at debunking other similar claims, but this one ? (Incidentally, having spent a full forty five seconds “fact checking” evidence of Politifact fact-checking – the traditional Politifact factcheck time budget – I can’t find anything beyond – “No confirmed finds, and even if there were that wouldn’t indicate ISIS membership.” So as debunking goes, not very debunky.

            1. Second, while you may have great faith in the liberal media’ “fact-checking” enterprises, that faith is not shared by all. Some folk think their record is somewhere between patchy and full on hacky. This particular folk, being very open minded, gullibly read several of them, before realising that their “fact checks” were often laughable. Which is not to say that their “fact checks” are always nonsense, any more than one could fairly claim that the National Enquirer is always wrong. So to cut a long story short “This has been fact checked by Wapo and Politifact” carries much the same evidenciary weight as “the guy on Fox said…”

              1. You really think that above post is true? Daily firefights? Any evidence at all of Muslims coming across that border?

                I’ll admit I got burned by doing so with you, but come on.

                1. I am sceptical about some of the claims. But as I know even less about the situation on the Mexican border than I know about federal law, I have nothing useful to say on that subject.

                  As far as useless things to say, I might comment on the claims as an exercise in testing one’s gullibiity. Hunting Guy makes a few claims about his own personal experience, and a few claims about what other people have told him about their experience. The latter seem to be considerably racier than the former (eg one or two personal experiences of the evidence of bad armed people (not all that racy) vs hearing reports of “nightly firefights” (very racy, and well worth televising). This accords with my own experience – the raciness of things I have personally experienced (other than on the TV) is rather feeble compared with what other people have told me they have experienced. And the longer the reporting chain, the more likely one is to encounter dragons. So when it comes to scoffing, I’m way more likely to scoff at a guy who says “I saw a ghost” than a guy who says “my Mom saw a ghost.”

                  1. In any event, I was not commenting on whether Hunting Guy is or is not gullible. I was commenting on your own gullibility as to the worth of “fact checkers” from WAPO and Politico.

                  2. If you are “skeptical of some claims” then you should be skeptical of his comment.

                    I’m with Sarcastro. (No surprise there, I imagine.)

                    It’s not just a question of Politifact or media fact-checkers. It’s common sense, not to mention the lack of confirmation.

                    He he’s seen “pictures a rancher took of Mexican Army vehicles escorting pickup trucks, five miles inside the U.S.” Where are they? How do you know it inside the US?

                    I call bullshit on the whole thing.

                    1. If you are “skeptical of some claims” then you should be skeptical of his comment.

                      Scepticism is a wise policy to bring to pretty much any factual claim. It covers a lot of turf. Not excluding whether you are really called bernard.

                    2. If someone makes a claim on the Internet, I usually assume they mean it sincerely at least. Mostly that’s about people not lying about their opinions. Occasionally it’s about personal anecdotes.

                      But at some point it’s too good to be true, and beggars belief.

                      This here isn’t like your all-too-convenient story where there were maybe three coincidences. It’s a tropefest to the point of the Mexican military being involved and daily firefights being covered up by the media. At this point, I’m wondering if this guy even lives in the US, its such inflamatory clear BS.

    2. I’m not the strongest of sycophants but you’ll have to explain it to me because it doesn’t seem “blaringly obvious” that the President’s actions are illegal under Youngstown. In that case, there were no acts of Congress authorizing the President to take possession of and operate the steel mills at issue. Here, there is the NEA and all the other statutes that may come into play under a declaration of emergency. In Youngstown, the President’s authority as Commander in Chief was not deemed to authorize his involvement in an internal labor dispute. Here, the President would be using the military to defend and protect the border, something clearly within the scope of his authority as Commander in Chief.

    3. I think that argument has been tried on and disposed of since the context predates the NEA. Do you feel the outcome would have been identical if the NEA was present prior to the Youngstown case?

      1. Not certain if the outcome would have been different if the NEA had been enacted prior to the Youngstown case because I’m not sure what emergency statutory authorities could be activated in the context of that case. In the present circumstances, there are statutes providing emergency military construction authority and eminent domain authority. And the fact that the present emergency is at the border distinguishes the 2 cases.

  4. Of course there’s that billion or so Obama gave away. How Obama Secretly Gave Iran Access To Billions Of Dollars ? And Enabled Terrorism.

    https://www.investors.com/politics/
    editorials/obama-iran-terrorism/.

    Sorry, had to split link (too long).

    1. The actions of Barack Obama – now the benchmark by which all current and future presidents are to be judged.

      1. It’s easy to understand how a Trump fan can think paying money you owe is giving it away.

      2. Given his grotesque ego & overreach, it’s apropos. We could talk about the TVA and the New Deal if you’d prefer. Roosevelt didn’t claim to be the most transparent administration in history, or scsndal-free. Then there’s obama getting a pass from the media for nearly everything for which trump is vilified. But you rock out your silly little myth that he’s unfairly targeted.

        1. Do you have a point to make?

        2. I neither defended Obama nor said he is unfairly targeted. Criticize him as much as you like. But stop defending Trump’s action with “Obama did it too.” So what?

          Obama’s grotesque ego? Wow!

          1. “I think that I’m a better speechwriter than my speechwriters. I know more about policies on any particular issue than my policy directors. And I’ll tell you right now that I’m gonna think I’m a better political director than my political director.”

            Nobody runs for President without having an absurdly high opinion of themselves, but yeah, that ego was pretty grotesque.

            1. Compared to Trump’s claims and boasts? That’s just a bold expression of confidence in his abilities. There’s probably something about Obama that makes it seem grotesque to you, wonder what it is.

              1. His ineptitude? His lack of any actual real world experience? His rampant corruption?

                Oh, let me guess, you assume that one cannot have disdain for Obama without being a Klansman, amirite?

                1. His rampant corruption?

                  I mean, he didn’t run a business as President where people payed inflated prices to get access to him.

                2. Rampant corruption?

                  Really? Where?

                  And there has never been a President anywhere near as corrupt as Donald Trump. Damn few businessmen have been as corrupt.

                3. Well I mostly think you cannot have disdain for Obama as compared with Trump without basically lying. In terms of real world experience, deriding community activism while venerating a reality-show fiction of a businessman suggests a gulf so steep and vast you had to close your eyes when vaulting over it.

          2. It’s fun to watch the Banana Republicans flip and flop on the subject of Obama. Most of the time, he’s the “worst President ever” and Trump’s greatest triumph is reversing his countless mistakes. But when Trump’s policies are criticized, they start crying about how these policies actually started under Obama. By their own logic, you’d think that would be a condemnation, not a defense. But, then, logic, facts and consistency are not in great evidence among Trump supporters.

            1. And the same occurs on the other side.

              “I have a pen and a phone” works both ways.

              1. Does it? Did anyone defend Obama’s actions by pointing out that George W Bush did it? I’m really asking the question, maybe they did and I just don’t remember.

                1. As I recall, as soon as Obama took office the Republicans were blaming him for the state of the economy and the war, and pointing out that he inherited a mess from Bush was met with scornful cries of ‘George W who?’ They have been consistent, though, inasmuch as they utterly deny the fact that Trump inherited a recovering economy from Obama.

      3. Well, at least it’s not Clinton or Reagan anymore.

  5. Well, since Obama was consider the one-who-could-do-no-wrong President, yes. Karma baby. And btw, Vox? Nothing like patronizing a totally leftish news (opinion) site. Talk about fake news.

    1. Unless you’re contending that they fabricated the quotes from the various people interviewed, I’d love to hear how it’s “fake news.”

  6. A Vox-selected group of people makes specious arguments against Trump. Shocker.
    Also, I’m amused to see this since several of these people had previously declared that Trump would NOT have the authority to declare an emergency at all. Fun to watch those goalposts fly!

  7. File under #fakenews.

    1. No, there really is a symposium on the issue at Vox. I just read it. Professor Somin is telling the truth.

  8. So the same opinion you posted earlier got picked up by Vox, but I think it still has the same issues in that much of it is based on your perhaps less-than-authoritative opinions of matters (start with “there’s no crisis”).

  9. Poor little Bull Cow, spewing his droppings all over the internet, because his dream of a communist one-world government with open borders for all is going up in smoke.

    1. “Communist government” is an oxymoron.

  10. I think the challenges are more spurious because it comes down to 1) whether the courts would agree in the definition of “emergency”, a decidedly political question that should not be decided by a non-political branch, 2) whether the Law allows the President to re-appropriate the funds, which it may or may not, 3) what harm the order would impose on people with standing to sue and whether sovereign immunity applies, making this I think a nonstarter.

    This symposium looks rather stacked in one direction with a lot of legal minds banking on the “there is no emergency….because I said so” argument.

    1. It’s obviously not an emergency. Trump has utterly undermined his own claim there. The ostensible justification for “emergency powers” (Which I believe are bogus and unconstitutional to begin with, but that’s a whole other argument.) is to enable the President to act in a crisis situation that doesn’t allow time for Congressional debate and legislation. In this case, Congress has had time to act, time granted to them by Trump himself. Congress declined to fund Trump’s magic wall, therefore the issue should be settled. The fact that the President didn’t’ get his way, even after he held his breath for a really long time, doesn’t make it an “emergency”.

      1. Congress passed a law and gave the power to the President to determine what is an emergency. Surprisingly, they didn’t mention you had the power to veto his decision. The qualifiers you place in the language of the Act, don’t exist.

      2. What Trump says publicly about the emergency is not important. What counts is what is in the emergency order itself. The previous administration set the precedent by passing the ACA arguing that the Individual Mandate was a penalty and not a tax – and then arguing before the Court that is was a tax and not a penalty. IIRC, it was the same person who argued both sides of the issue. The Court had no problem ruling it a tax. I fail to see how the Court can now reverse it’s own precedent.

        Congress did not decline to provide money for the wall. The bill that Trump signed included money for the wall. Just not the amount Trump wanted. Why include that money in the bill if Congress was not at least minimally supportive of a wall?

      3. “It’s obviously not an emergency.”

        Emergency is not defined in the statute but all the past declarations were not for “OMG we are going to die 9/11-Pearl Harbor emergencies” but things that are merely moderately urgent problems.

        Is the border issue [including drugs] a moderately urgent problem?

  11. Vox symposium?

    “Which Nazi leader does Trump most resemble – Himmler, Heydrich or Hitler?”

    1. I think he looks a little like Eva Braun.

  12. Ilya

    Your argument is not persuasive. Congress has delegated that authority under the NEA. The better argument is that congress should have never granted the power in the first place. That is the best and only real answer in this case. Congress can at its pleasure pass a law that amends or better yet cancels the NEA in its entirety. I would hope they have the votes to overcome a veto. The NEA should not exist.

    That is the only argument.

    1. Neither NEA should exist.

    2. “congress should have never granted the power in the first place.”

      The NEA was passed as a restriction on Presidential claims of inherent emergency powers.

  13. An emergency should not be able to be premised on Congress did not appropriate the funds you wanted. This is just the President appropriating finds. If this is legal under the 1976 emergency act than the whole thing should be declared unconstitutional.

  14. I agree entirely that the plan is illegal. And supremely stupid. But Trump is far from the first President to go down that path. You cite Article I, Section 9, Clause 7 of the Constitution:

    “This plan is illegal, and would set a dangerous precedent if it succeeds. Article I of the Constitution mandates that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.””

    But that section of the Constitution wasn’t even a speed bump for President Obama when he wanted to pay out shared responsibility payments to health insurance companies under PPACA (a/k/a Obamacare),despite the fact that Congress refused to appropriate the funds for those payments.

    Trump ignoring the Constitutional limits on Presidential power is very bad. But no worse than Obama doing the very same thing.

    1. List of national emergencies in the United States

      Not a peep until Trump.

      DACA was easily one of Obama’s most flagrant abuses of executive power. And what has happened with that? Unbelievably, the courts have enjoined the Trump administration from reversing the former executive’s actions! All because keeping up the massive flood of immigrants is so incredibly important for some peculiar reason….

      At some point, you have to face reality as it actually exists. Do we have a Constitution that is actually in effect? Or a functioning judiciary?

      If the Constitution is not followed except only very selectively and conveniently, at what point does it become a total farce and a sham to maintain any pretense otherwise? Surely, if the Constitution is completely disregarded, then the consent of the governed is nullified and the federal government is nothing but an illegitimate state of force.

  15. So the President has the authority to declare emergencies, but simply lacks the authority to do anything about them. That’s interesting.

  16. “And there is no such clear authorization here.”

    not only is there no clear authorization, the public record of discussion on the issue makes it clear that there is a _lack_ of authorization — it is not ambiguous as to authorization — it is distinct and unambiguous that the legislature COULD NOT AGREE TO PROVIDE such authorization.

  17. I am standing to think the emergency statute may be unconstitutional under Schechter Poultry.

  18. I am interested in the symposium but your contribution is too predictable to be bothered reading.

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  20. Really, Vox? That’s what you’re going with here?

    Vox, the Ilya of extreme left-wing “news”.

  21. If this all comes down to the subjective question of whether there is an “emergency” then Trump should definitely prevail.

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