On February 15, President Trump declared a national emergency, based on the immigration situation along our southern border.  President Trump plans to use the national emergency in order to access funds previously allocated to the Department of Defense (DoD) to build a border wall.  As most of our readers know, Congress has previously refused to allocate specific funds toward the construction of a wall; President Trump can bypass Congress and access DoD funds which have not been earmarked for another specific purpose through emergency powers. The purpose of this post is to discuss the legality of such a presidential emergency declaration – in light of immigration data itself, and under both constitutional law as well as under federal statutes.  For previous posts about this topic, see this excellent compilation on Just Security.

President Trump has claimed that the immigration situation along our southern border is one constituting a national emergency, because of high numbers of immigrants attempting to enter the United States, but also because of such immigrants’ ties to terrorism and/or the drug trade.  Immigration data does not support this claim.  Net immigration numbers have been steady, and the number of border apprehensions along our southern border is at a historically low number.  In fact, in 2000, the Customs and Border Protection (CBP) had apprehended roughly 1.6 million individuals along the southern border; that number is down to slightly below 400,000 in 2018, and to roughly 300,000 in 2017.  In addition, the number of undocumented aliens in the United States has been steady, at around 10.7 million.  Out of thousands of suspected terrorists who have entered or attempted to enter the United States, only a handful have done so by land.  And the vast majority of illegal drugs enter the United States through legal ports of entry, and are not carried by illegal immigrants who attempt to enter by land, through our southern border, by walking across the desert and swimming across the Rio Grande.  Thus, actual data does not support President Trump’s assessment of immigration at our southern border.

Under the United States Constitution, the President is the commander-in-chief and has inherent constitutional authority to act.  Presidential powers are not unlimited however.  In the famous Youngstown case (1952), the Supreme Court held that President Truman did not have inherent constitutional authority to seize the operation of steel mills during the Korean War, because Congress had not authorized him to do so.  Justice Jackon, in his concurring opinion, wrote that when the president acts in direct contravention of congressional wishes, his power is at its “lowest ebb.”  The Youngstown precedent may be problematic for the Trump Administration: it may be argued that Congress has specifically refused to authorize funding for the border wall, and that the President is acting against Congressional wishes, so that his power would be at its “lowest ebb.”  Under this paradigm, President Trump’s actions may not be upheld as constitutional. Some have argued, however, that the President’s actions may be validated by the current conservative majority of the Supreme Court, in light of a subsequent Supreme Court case, Dames & Moore (1981).  In Dames & Moore, the Supreme Court upheld President Carter’s and President Reagan’s presidential actions to implement the Algiers Accords, ending the Iranian hostage crisis, which consisted of lifting sanctions against some Iranian assets in the United States, suspending litigation against Iran in U.S. courts, and funding the Iran-United States Claims Tribunal.  In this case, the Supreme Court found that the President had constitutional authority to act because Congress had implicitly authorized this particular presidential action.  Thus, some have argued that the Supreme Court is likely to defer to the executive branch, following its Dames & Moore precedent, because Congress has implicitly authorized wall construction, through the 2006 Secure Fence Act, which authorized the construction of fencing along some points of our southern border.  It may be argued that the Secure Fence Act did not provide congressional acquiescence toward the construction of a lengthy wall along the entire border, but that the act instead authorized limited fencing at concrete points of our border.  Thus, it may be argued that Congress did not implicitly authorize wall construction.  Nonetheless, it is difficult to predict how the Supreme Court would rule on this issue; the Court would be likely to split along its conservative/liberal membership.

Under federal law, Presidents can declare emergencies under the National Emergencies Act of 1976.  Pursuant to this Act, a President has to inform Congress about the emergency, and has to identify which other statutes that have emergency provisions in them the President plans to rely upon.  Since the Carter era, 31 emergencies have been declared by our presidents.  According to the Brennan Center for Justice, there are 123 statutes with emergency provisions embedded in them; out of these statutes, two are relevant in this situation.  Section 2808, Title X, provides that in case of a national emergency which requires the use of armed forces, the Secretary of Defense may undertake the construction of military projects necessary to support such armed forces.  Such construction projects may be undertaken using funds previously allocated to the DoD, which have not been earmarked for another specific purpose.  It is not at all clear that immigration enforcement along the southern border requires the use of armed forces.  In fact, immigration enforcement is a civilian function, accomplished through Immigration and Customs Enforcement and CBP.  Moreover, it is not clear that the construction of a wall is necessary to support armed forces.  Even if armed forces were required for immigration purposes on the border, they could be supported through technology, civilian human resources, weaponry, etc.  Thus, it is not certain that Section 2808 applies in this situation and a court, including the Supreme Court, could decide not to validate President Trump’s reliance on this law.  In addition, Section 2293, Title 33,  provides for reallocating funds for civil works during national emergencies. Similar to section 2808, this provision applies to any national emergency that “requires or may require use of the Armed Forces,” meaning it would raise the same legal issues as those described above. In addition, this provision allows the DoD to reallocate funding between already authorized projects, but not to undertake new, unauthorized ones.  And, this section only allows for projects which are “essential to the national defense.”  It is uncertain that the construction of a wall is essential to our national defense.  Moreover, even if this section were used, it is unclear how much funding President Trump could access, because section 2293 simply allows for the reprogramming and reallocation of existing funds, which may be insufficient for wall construction.  In sum, it is uncertain whether President Trump has the requisite statutory authority to implement his emergency declaration, as both of the sections discussed above can be interpreted as not authorizing the construction of a thousand-mile wall along our entire southern border.

While it is difficult to predict what will happen, it is certain that legal challenges are on the way.  Multiple groups, including state attorney generals and the ACLU have indicated that they will sue the Trump Administration.  And it is likely that the legal challenge will end up before the Supreme Court.  The fate of a border wall is uncertain for now, and the Trump Administration may be on shaky legal ground.