March 14, 2019

President Trump’s Fantasy Emergency Violates the Separation of Powers


Unable to secure congressional funding for his border wall, President Trump has chosen to manufacture a crisis and declare a national emergency in order to get his way. His formal declaration raises serious concerns about the separation of powers, even for an administration already known for playing fast and loose with the law.

Congress controls the country’s purse strings. The President’s use of emergency powers in an unwarranted situation, simply to redirect money to a pet project, flies in the face of that fundamental constitutional principle.

To further explore this issue, ACS held two webinars, “A Real Emergency: What the President’s Invocation of a National Emergency Could Mean for Our Constitutional Order” and “Bypassing Congress in the Name of National Security: Trump’s ‘National Emergency’ Declaration.” Below are key points from the experts participating in these webinars.

WHAT HAPPENS NOW

  • Peter Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz College of Law: Simply declaring a national emergency does not by itself make something happen. What happens is that the president in his order names specific statutes that give other members of the executive branch statutory authority to respond to national emergencies.
  • Steve Vladeck, A. Dalton Cross Professor of Law, University of Texas School of Law: Congress didn’t try to define what a national emergency was; rather, the NEA was a gateway for the President to unlock special authorities. Going forward, a lot of the focus will be not on the National Emergencies Act itself but on which of these activated emergency authorities the president tries to use.

 FUTURE LITIGATION

  • Peter Shane: Courts may be reluctant to second-guess the president’s national security determinations, but there’s much more room in an administrative law sense to challenge whether the building of the wall fits within the terms of the Military Construction Act.
  • Cristina Rodriguez, Leighton Homer Surbeck Professor of Law, Yale Law School: There are two specific authorities that are likely to be invoked: 10 U.S. Code 2808, which allows the Secretary of Defense to authorize military construction projects, and 33 U.S. Code 2293, which involves reprogramming of funds during national emergencies. Ultimately, the legal cases will revolve around statutory questions.
  • Mary McCord, Senior Litigator from Practice at the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center: There will be a plethora of litigation that will in part depend on what exactly is said when the President publishes in the Federal Register the specific provisions of law under which he proposes to act under this declaration of emergency. There are several issues that could be sources for potential legal challenges: separation of powers, the Antideficiency Act, restrictions on use of military funds, restrictions on reprogramming money appropriated for civil works projects, the Posse Comitatus Act, and eminent domain.

Analysis from the ACS Blog:

Statement of ACS President Caroline Fredrickson Analysis from the ACS Blog: President Trump’s Fantasy Emergency to Build a Border Wall Violates the Separation of Powers (Feb. 15, 2019)