Over the weekend, I linked to Jack Goldsmith’s article on President Trump’s use of national emergency power to come up with the money to build more border fencing. Goldsmith took no position at this early date on the legality of Trump’s move. However, his initial view is that hysteria over it is misplaced and that Trump’s legal position is plausible.
John Yoo goes further. He finds that the law is on Trump’s side.
(Yoo and Goldsmith both served as head of the Justice Department’s Office of Legal Counsel during President George W. Bush’s first term. Yoo held that position from 2001-2003. Goldsmith held it from late 2003 until mid 2004. The two disagreed rather strenuously over certain Bush administration positions, including the “torture memo.” However, their analysis of Trump’s emergency declaration follows similar lines).
Yoo argues that President Trump can support his funding of the border wall based on congressional delegation of authority to the executive branch. Thus, he doesn’t need to claim a constitutional power to move money around during an emergency.
The first congressional delegation of authority cited by Yoo is Section 2808, Title 10 of the U.S. Code. It provides:
In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.
This provision appears to apply here (but see David French’s argument that it does not). As commander-in-chief, President Trump has ordered 3,000 troops to defend the integrity of the border, a more than legitimate military mission. The construction of a wall supports the military’s mission.
Is it necessary to support that mission? The question can be argued both ways. However, I think the president’s determination that it is necessary deserves, and would likely receive, considerable deference.
Yoo also cites Section 2293, Title 33 of the U.S. Code. It allows the secretary of defense to reallocate funds from military construction projects:
In the event of a declaration of war or a declaration by the President of a national emergency in accordance with the National Emergencies Act [50 U.S.C. 1601 et seq.] that requires or may require use of the Armed Forces, the Secretary, without regard to any other provision of law, may (1) terminate or defer the construction, operation, maintenance, or repair of any Department of the Army civil works project that he deems not essential to the national defense, and (2) apply the resources of the Department of the Army’s civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.
This provision does not require that the construction be necessary to support the armed forces. Instead, it requires that (a) the civil works, military construction, or civil defense project be “authorized”; and (b) the project be “essential to the national defense.”
Congress has authorized border wall building. Reasonable people might disagree as to whether more wall is “essential” to the national defense. Again, though, courts might well defer to the president’s determination that it is.
Not only do presidents still have some reservoir of constitutional authority to declare emergencies, but Congress has seen fit to enhance it with the right to re-allocate spending to support such a declaration. Despite the pleas of administration critics, the Supreme Court will almost certainly agree.
As President Trump likes to say, we’ll see what happens.