When President Obama was in office, we heard a lot from Republicans about how President Obama was usurping the power of Congress to write laws. Since President Trump has been in office, despite President Trump going much further than President Obama ever did, the Republicans have been noticeably unwilling to do anything to oppose this practice of legislating by executive order. The most recent invasion of congressional authority was the President’s decision that he could ignore the line items in appropriations bills because he wants more money for border wall construction than Congress was willing to appropriate.
Over 50 years ago, in Youngstown Steel vs. Sawyer, a case involving the temporary seizure of a steel mill at the start of the Korean War (i.e. a real emergency), the United States Supreme Court found that the seizure exceeded executive authority. At that time Justice Robert Jackson (one of the leading conservative justices of the mid-20th Century) wrote a concurrence that recognized three potential situations which had different implications for presidential authority. First, the president was acting with maximum authority if there was a congressional statute granting him that authority. Second, the president was in a middle zone when Congress had taken no action. In other words, while such a president would be relying on his constitutional authority, there was at least no law barring the action. Finally, there was the circumstance in which there was a contrary statute barring the President’s action. In such a case, a court could only allow the president to act if the president had independent constitutional authority and Congress lacked the authority to limit the president’s actions.
In the current circumstance, the debate will be over whether President Trump’s actions fall into category one (authorized by Congress) or category three (barred by Congress). The President will be relying on the law governing declarations of national emergencies. As part of that law, the President is authorized to engage in construction to support the use of the military in responding to such an emergency. While the statute does not define national emergency, the past use of that power has usually been in the case of a military crisis or a national disaster. Additionally, the authorization for construction to support the military is implicitly for support facilities (e.g. housing, etc.) not for construction of permanent structures intended for civilian use.
On the other hand, the opponents will be arguing that there is no “emergency” and that the grant of power to declare an emergency requires that there actually be an emergency. In the absence of such an emergency, Congress has appropriated spending for specific purposes. Because the power to appropriate is given to Congress, the president has no inherent constitutional authority to alter those appropriations and spend money allocated for a military purpose to a project on border security that Congress declined to fund. Additionally, if Congress passes a resolution terminating the declaration of emergency, but the resolution fails due to a presidential veto, that could way against the president’s position in court.
This dispute will put the courts in a difficult position — not unlike the position in the Youngstown Steel case. Generally, courts do not like to second guess the president on issues of national security. But, on the other hand, courts do not like it when presidents act as if everything is a national security issue. The question for the courts will be: 1) whether to find that there are some limits on the ability of the president to declare a national emergency (in other words, whether there is some common understanding of the concept of an emergency that should be read into the statute); and 2) whether the present circumstance is an emergency. In recent years, the primary example of a national emergency requiring the invocation of these powers was the September 11 attacks on the United States — a mostly unanticipated event requiring a quick military response that could not wait for a supplemental appropriations bill. Of course, that emergency has been repeatedly extended over the past 18 years.
In the present case, involving illegal immigration (some of which is technically not illegal) across the southern border, it is hard to see how the claim of emergency is factually true under any common understanding of the term emergency. Yes, there are periods when the number of immigrants approaching the border spikes, but, overall, the number of illegal border crossings appear to have declined over the last 15 years. And the other claims related to violent criminals and drugs appear to be equally inaccurate. Thus, it is unlikely that the lower courts will side with the president. And the time that it will take the lower courts to decide the case means that it is unlikely that the Supreme Court will look at this matter before the fall of 2020 if then.
In short, we are looking at a publicity stunt by the President. He is not going to get to build a wall before the end of this term. And if he wins in the courts, the result could be a broad expansion of presidential powers which could be used in 2021 to respond to real emergencies (e.g., climate change).
