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. Continue Reading...