The Legality of President Trump’s National Emergency Declaration

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.

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Court Order Protects Women Refugees (For Now)

As I’ve discussed previously, President Trump Executive Order (EO), “Protecting the Nation From Foreign Terrorist Entry Into the United States,” had particularly grave consequences for women refugees. Under the EO, all refugees were suspended from entering the United States for 120 days, which adversely affected women in particular. The EO also suspended all citizens from seven targeted countries—Iraq, Syria, Somalia, Sudan, Libya, and Yemen —from entering the United States, and it banned refugees from Syria indefinitely. Women refugees often flee sexual violence and other persecution, and without refugee protection, women are often stranded in refugee or temporary settlement camps where they face a heightened risk of sexual and physical violence.

In light of this, the nationwide injunction issued by a federal judge in Washington last week and the other day’s Ninth Circuit Court of Appeals’ decision to uphold that injunction are good news for women refugees. Under the injunction, the provision in Trump’s EO suspending refugee admissions is on hold for now, and refugees are once again allowed to enter the United States and seek resettlement as planned. However, President Trump has threatened to fight the decision, indicating he may appeal now to the Supreme Court.

While the Ninth Circuit opinion was not a full-fledged decision on the merits (as it was merely reviewing whether or not to lift the district court’s temporary restraining order), as Jen Daskal helpfully notes on Just Security, the court drew a number of important conclusions. First, while it found that the President’s power over immigration is entitled to substantial deference, the court rejected the Trump administration’s claim that this power is unreviewable, particularly when constitutional rights are at stake.  Second, the Ninth Circuit noted due process rights cover all persons in the United States, including aliens. Third, the court indicated its concerns that the EO is intended to disfavor Muslims, potentially violating the Establishment and Equal Protection Clauses, but ultimately noted it would “reserve consideration of these claims” until the merits have been fully briefed.   Fourth, the court emphasized deep skepticism of the national security claims asserted by the government, noting that the administration has presented “no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” In fact, ten top national security experts from across parties and across several administrations filed a declaration with the court indicating that the Executive Order did not, in fact, achieve national security goals and may, in fact, undermine them.

Indeed, refugees scheduled to arrive in the United States have already undergone an intensive vetting process.

*This post is cross-posted at cfr.org.

Go On! This Thurs, Feb. 26: Cardozo, Fordham Law present ‘Liberty and Security Today: A New Normal?’

 Given renewed fears of terrorism driven by the rise of ISIS and their skilled use of social media, how is the continuing conflict over security and liberty evolving? What can we expect in the future as the renewal of the Patriot Act looms and debate over authorizations for the use of force and surveillance come to the floor of Congress? Is there a new normal?  And if so, what does it mean for civil liberties and for the safety and security of Americans?

 

This Thursday, Feb. 26, from 7-8:30 pm, the Cardozo Law Institute in Holocaust and Human Rights and The Centre on National Security at Fordham Law will present “Liberty and Security Today: A New Normal?” (See event flyer here: Liberty and Security Today FINAL.) To attend, please RSVP to cardozo.clihhr@yu.edu

 

This event is free to the public and has been approved for 1.5 NYS transitional/non-transitional CLE credits in the category “Areas of Professional Practice.” To register for CLE credits, please RSVP to cardozo.clihhr@yu.edu with subject line: RSVP for CLE credits.

Pollution, brain tumors, children . . . and national security

Ionizing radiation symbol“If Al Qaeda sent a team of sleeper cells to poison our groundwater and release toxic materials into the air, people would go nuts. It would be an act of war,” Dycus notes.

“But if we do it to ourselves in the name of national security, in preparation for war, that seems to be sort of OK.”  

– My Vermont Law School colleague Steve Dycus, quoted in The Nation’s detailed story about lawsuits accusing defense contractor Pratt & Whitney of causing a brain cancer cluster among children in Florida by contaminating the area’s soil and water:
The Brain Cancer Rate for Girls in This Town Shot Up 550%—Is a Defense Contractor to Blame?

Dycus is lead author of National Security Law (Wolters Kluwer) and Counterterrorism Law (Wolters Kluwer), and author of National Defense and the Environment (Univ. Press of New England).

The World Cup Spotlight (Part II): In the Shadows of National Security

(Previous posts in this series here and here.)

Argentina celebrates win over Switzerland (photo credit)

Argentina celebrates win over Switzerland (photo credit)

Blogging from Argentina, where World Cup expectations are at an all-time high and where nearly everything stopped for two hours yesterday afternoon for the Argentina-Switzerland game (even schools either showed the game or let children go home temporarily to watch it).

Yet, for some Argentines – as well as likely for some Brazilians – a World Cup in South America conjures up memories they’d rather leave alone. Argentina hosted and won (though not without controversy) the Cup in 1978, two years into its brutal military dictatorship and fourteen years into Brazil’s. Under the guise of national security, both governments tortured and disappeared their own citizens in an effort to quell left-wing dissent. In Buenos Aires, one of the most infamous torture centers was just a few blocks from the stadium where the final game between Argentina and the Netherlands was played, and former prisoners recall hearing the jubilant crowds cheering while they were rotting in tiny cells awaiting the next torture session or worse.

National security was once again in the headlines in Brazil in the past year leading up to the World Cup. As is protocol for the country hosting the next Cup, Brazil also played host for the Confederations Cup a year ago, a trial run for the bigger tournament happening now. Brazilians angry with the government’s disconnect with the plight of the poor used the tournament as a stage on which to air their discontent. Protestors were sprayed with rubber bullets and arrested under Brazil’s national security law.

A counter-terrorism bill now before the Brazilian National Congress has given some people pause due to its vague wording as it could conflate protestors and terrorists, though proponents say that the law is necessary given Brazil’s growing international profile. Among other provisions, the proposed bill calls for a penalty of 15-30 years in jail for “causing or inciting widespread terror by threatening or trying to threaten the life, the physical integrity or the health or liberty of a person.” Drafters have said that they will amend the text to clear up ambiguities, but a major concern is that  the law, if passed, will criminalize freedom of expression. Brazil’s president, Dilma Rousseff, herself a former guerrilla who was tortured during the military dictatorship, likely sees the potential harm in the imprecise bill, nicknamed A1-6 after the A1-5 law that was in effect during the dictatorship, and has declined to sign it – so far.

It remains to be seen how these soccer-loving countries will reconcile their unease with national security and terrorism laws with their growing presence on a global stage. And the World Cup, while capturing the interest of much of the world, will also bring the participating countries’ uncomfortable pasts into the spotlight. As Brazil tries to best Colombia on Friday and Argentina takes on Belgium on Saturday, not everyone will be glued to a television; some will be purposely avoiding the tournament so as not to relive their experiences in 1978.

 

 

 

 

 

 

 

The World Cup Spotlight (Introduction)

By now, Brazil’s lack of adequate preparation for the World Cup soccer tournament is well documented (see here, here, and here, among others). As the month-long competition kicks off tomorrow, it is likely that roads, transit lines, and stadiums throughout Brazil will still be under construction. Yet, insufficient infrastructure is but one of the myriad issues that may potentially plague this and other World Cups. Legal-political issues such as sex trafficking, forced migration, slavery, questions about the amount of public money spent on this quadrennial event, and national security concerns all threaten to mar the glossy surface of the world’s most popular sporting event.

This series, The World Cup Spotlight, will examine some of the effects this quadrennial event has on the host country and beyond.