On February 15, 2019, President Trump declared that the “current situation at the border . . . threatens core national security interests and constitutes a national emergency.” Unlike President Truman’s ultimately unsuccessful attempt to seize private steel mills to assure continued steel production during the Korean conflict, Trump’s declaration was not an exercise of inherent presidential power but rather was issued under a statute, the National Emergencies Act, 50 U.S.C. § 601 et seq. (NEA). Enacted in 1976 to regularize presidential emergency declarations—in some cases, extant declarations dated back to the Korean war—the NEA authorizes the president to “declare [an] emergency” “[w]ith respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power.” The emergency declaration acts as a kind of trigger awakening those dormant “Acts of Congress authorizing the exercise . . . of any special or extraordinary power,” which are expressly conditioned on a presidential emergency declaration issued “in accordance with th[e] [NEA].”
Before addressing the specific statutory authority on which the president bases his exercise of “special or extraordinary power[s],” the first issue is his compliance with the NEA. The NEA imposes several requirements on the president. Among those requirements are, first, that any declaration of an emergency “shall immediately be transmitted to the Congress and published in the Federal Register.” Second, any declaration of an emergency does not allow the president to exercise any special or extraordinary power unless he “specifies the provisions of law under which he proposes that he, or other officers will act”; such specification, while it need not be made in the order declaring the emergency, must nevertheless be transmitted to Congress and published in the federal register. Here, the president has declared the purported basis of the emergency and has identified at least one statute, 10 U.S.C. § 2808, under which he purports to act and has informed Congress to that effect.
Critics argue that Trump’s declaration posits a sham emergency, a pretext for other policy objectives. It is important to understand, however, that Congress in the NEA did not define whether and when a president may declare an emergency. The broad delegation to the executive may reflect the fact that Congress in 1976 thought it could rely on a concurrent resolution, requiring only a simple majority of both houses, to check the president. As presaged by President Ford in his signing statement, and as the Supreme Court would make clear in its 1983 Chadha ruling, the concurrent-resolution mechanism cannot constitutionally effect a change in law, which would be required to overturn a president’s emergency declaration under the NEA. As of now, even if the Senate joined the House in rejecting Trump’s declaration, overcoming a likely veto would require a two-thirds vote of both chambers.
Reasonable people will disagree over whether there is a bona-fide emergency at the border, but there is nothing in the NEA’s text or structure that offers a reviewing court a judicially manageable standard for second-guessing a president’s emergency declaration. There is also little in the history of prior presidential declarations, whether under the NEA or before its enactment, that supports a rule limiting the president to true exigencies or unforeseeable disasters. Of the fifty-nine instances of declarations under the NEA compiled by the Brennan Center, the vast majority concern policy problems that were neither unforeseen nor exigent in nature. Consider, for example, Executive Order 13288 in which President George W. Bush instituted a series of trade sanctions against Zimbabwe on the grounds that certain individuals in that country, including longtime dictator Robert Mugabe, were acting to “undermine Zimbabwe’s democratic processes or institutions.” At the time, Mugabe had been “President” of Zimbabwe for a decade and a half undermining its faltering democracy—circumstances that were hardly unforeseen and had very little connection to US national security Another national-emergency declaration involved sanctions against Cuba (for long-standing clashes with ships and planes in Cuban waters or airspace). In another, Somalia was sanctioned in 2009 in part for conduct violating an embargo from the 1990s. It is more the exception than the rule that declared emergencies dealt with unforeseen exigencies. Furthermore, in deciding the question of whether a bona fide emergency declaration has been made, the decision last spring in Trump v. Hawaii, dealing with the White House’s limitation on visa issuance to nationals of certain countries, indicates the current Court’s willingness to defer to executive determinations involving national security; and it is not clear that is the wrong approach for courts to take in this context.
Even if the president’s declaration is in conformity with the NEA, he does not have authority under the Constitution’s Appropriations Clause to spend money that Congress has not appropriated. President Trump relies on three sources of funding for his projected barrier on the southern border.
1. Military Construction Projects
One basis is 10 U.S.C. § 2808, which provides that, “[i]n the event of . . . the declaration . . . of a national emergency . . . that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects” which are “not otherwise authorized by law [and which are] necessary to support such use of armed forces.” Under the statute, a “military construction project” is broadly defined as “any construction, development, conversion, or extension of any kind carried out with respect to a military installation”; such a project “includes all military construction work, or any contribution authorized by this chapter, necessary to produce a complete and usable facility or a complete and usable improvement to an existing facility.”
Section 2808 specifies that where military construction projects are authorized, “[s]uch projects may be undertaken only within the total amount of funds that have been appropriated for military construction . . . that have not been obligated.” In essence, where a qualifying emergency has been declared, the president may draw from the broader pool of money made available for military construction and then direct those funds toward the construction of projects related to the emergency declared. Here, the president has determined that “it is necessary for the Armed Services to provide additional support to address the crisis” that he has declared to pose a national emergency.
As an initial matter, the statute by necessity gives relatively little guidance as to whether and when a national emergency “requires use of the armed forces.” While that language would undoubtedly reach projects like the construction of encampments or other structures helpful to the armed services, it does not plainly reach a construction project whose primary purpose is to address the “criminals, gang members,  illicit narcotics” and “large-scale unlawful migration” that the declaration identifies as the core causes of the national emergency. Moreover, the president’s declaration does not appear to make any findings on why these funds are distinctly necessary to “support . . . use of armed forces.”
One key indicator of the kind of emergency that Congress might have contemplated arises in the first sentence: the statute states that “military construction projects” may be undertaken either “[i]n the event of a declaration of war or the declaration of an appropriate national emergency” in accordance with the NEA. This language and structure suggest that the kind of emergency that Congress contemplated would be distinctly military and of a kind similar to that found in an armed conflict or deployment of troops to head off a conflict, thus necessitating use of the military. Under this reading, the president’s ability to invoke § 2808 would depend upon whether the armed forces mobilized would be engaged in a military operation; it would not be sufficient that they are merely being used to help construct the barrier or to guard construction workers. Though the president has frequently described the unlawful entry of persons into the United States as an “invasion” and has adverted to the possibility of terrorists and other dangerous persons being able freely to enter the country, it is difficult to argue that the building of a border wall “requires use of the armed forces” or is “necessary to support such use of the armed forces” within the meaning of § 2808.
2. The Treasury’s Forfeiture Fund
In addition to § 2808, the White House has offered two additional funding sources. The first is the Department of the Treasury’s Forfeiture Fund (“Fund”), a pool of monies obtained through civil asset forfeiture. Here, 31 U.S.C. § 9705(g)(4)(B) provides that, where there are “unobligated balances” remaining in the Fund after the Treasury has set aside certain amounts as required by statute, such balances “shall be available to the Secretary . . . for obligation or expenditure in connection with the law enforcement activities of any federal agency.” President Trump asserts that some $2.5 billion will be made available from the Fund.
3. Counterdrug Activities
The final source is 10 U.S.C. § 284, which provides that the Secretary of Defense “may provide support for the counterdrug activities . . . of any other department or agency” and that such support may include “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”
Under § 284, the president has a strong argument that paying for the border wall is sufficiently related to the “counterdrug activities” of other federal and state actors. The key question will be whether a border wall as conceived by Trump constitutes a “fence” built for the purpose of “block[ing] drug smuggling corridors” and whether this language requires that fencing be placed in particular locations where drugs have been actually interdicted or are likely to be interdicted, rather than be built across the border as a whole. President Trump has a strong position on the statutory question; a border wall or barrier is certainly a kind of “fence”; after all, this was the terminology Congress used in the Secure Fence Act of 2006 (Pub. L. 109-367)which authorizes the Secretary of Homeland Security to take “all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States . . . .” Finally, under 31 U.S.C. § 9705, the funds must be directed toward “the law enforcement activities of any federal agency.” That requirement is likely satisfied here as well given the dual purposes of dealing with unlawful immigration and the inflow of dangerous narcotics.
In sum, the president appears, at minimum, to have a credible statutory argument both on the authorization of the construction projects and on some of the identified sources of funding; his reliance on § 2808, the military construction act, is doubtful. A broader objection to the president’s emergency declaration is that he is acting in contravention of a clear congressional policy or plan. This was the ground for the Supreme Court’s landmark Steel Seizure decision, in which it rejected President Truman’s emergency seizure of private steel mills during the Korean conflict. One of the bases for striking down Truman’s order was that Congress had expressly legislated on the subject, establishing preconditions to “national emergency” seizures of property during labor disputes with which the president did not comply. Similarly, one of us has written elsewhere that President Obama’s Iran nuclear agreement essentially flouted congressional policy expressed in numerous sanctions legislation against Iran. In this case, by contrast, while Congress has shown an unwillingness to fully fund a barrier on the southern border, it has declared a policy judgment at least in the Secure Fence Act of 2006 that such a border is in the national interest and, even more recently, has been willing to fund $1.4 billion in the legislation that put an end to the recent government shutdown. We do believe there is a need for legislation tightening up the standards for presidential declarations of a national emergency, and for Congress to review and consolidate the seemingly vast array of statutes that authorize emergency measures on a presidential declaration.