President Trump is declaring a national emergency to build a wall on the southern border. It raises an important question that is not asked of politicians often enough: does he have the legal authority to do that?
The first answer to any question about federal power can be found in the Constitution, which requires the president to “faithfully execute the Office of President of the United States,” and to “preserve, protect and defend the Constitution of the United States.”
The greater purpose of the Constitution (and therefore the presidency) is described in its preamble: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Illegal immigration challenges several of these duties because it is a crime against the territorial sovereignty of the United States. The president must repel illegal immigration. It’s his job to protect the borders. The National Emergencies Act is one of the many resources Congress has granted the president to help him do that job.
The act allows the president to identify resources that have already been appropriated to his office and reallocate those resources toward projects that have already been entrusted to his office. Here, the project is defending the border: a project that’s entrusted to the office of the president through the Constitution and through multiple federal statutes. The resources available for that project include money that Congress has already appropriated.
The National Emergencies Act is not controversial. Every president has used it since it was passed in 1976. There are presently more than 30 active national emergencies. Ironically, the most unusual aspect of Trump’s reliance upon the act is that, typically, presidents invoke the act in response to problems that few people would consider to be an emergency for the United States. Many active emergencies under the act relate to problems in countries that neighbor the United States only alphabetically: Ukraine, Somalia, Sudan, Syria, Venezuela, Yemen and Zimbabwe.
Scaremongering about the National Emergencies Act exploits public ignorance. The National Emergencies Act is not a super-constitutional magic trick that allows the president to do anything he wants. The president cannot use the act to declare a national emergency confiscating everyone’s guns unless Congress passes a statute like the statutes Congress passed to authorize a border wall. And it would be superfluous for a future Democratic president to declare a national emergency over climate change. There’s already the Environmental Protection Agency, through which the last Democratic president already exceeded his constitutional authority.
The only new precedent being set is that, finally, the president is using the National Emergencies Act to address a problem that’s an emergency in this nation: the only nation he’s constitutionally obligated to defend.
Heaven forbid that the president declare a national emergency over a problem that actually touches the United States. But the National Emergencies Act doesn’t forbid it. And the Constitution doesn’t forbid it either.
Lew Olowski is an attorney and formerly a clerk to Radovan Karadzic, president of the Bosnian Serb Republic, at the United Nations International Criminal Tribunal for the former Yugoslavia. Lew served under Peter Robinson, who is among the world’s premiere international criminal trial lawyers litigating war crimes, genocide, and crimes against humanity. He is a graduate of Georgetown Law School.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
