In Declaring Emergency to Build Wall, Trump Would be Violating Law

Interview with Marjorie Cohn, professor emerita, Thomas Jefferson School of Law, former president of the National Lawyers Guild, conducted by Scott Harris

After more than three weeks of a partial U.S. government shutdown, where more than 800,000 federal workers have either been furloughed or forced to work without a paycheck, there’s been little progress toward negotiating a solution. Trump’s demand for Congress to allocate $5.7 billion to build a wall along the length of the U.S.-Mexico border triggered the shutdown soon after right-wing commentators criticized the president for signals that he was about to back down on his election campaign pledge.
But before Trump’s Jan. 8 nationally televised address on what he described as a border crisis, he threatened to declare a national emergency to secure the funds Congress has denied him to build his border wall. In 1976, Congress passed the National Emergencies Act, which permits a president to declare a national emergency when he deems it appropriate. But the act offers no specific definition of “emergency” and constitutional scholars have challenged the legality of declaring an “emergency” to justify an end run around Congress.
Although in recent days, Trump has said he’s backing off the idea of an emergency declaration, the possibility still exists that it could be employed to end the government shutdown. Between The Lines’ Scott Harris spoke with Marjorie Cohn, professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild. Here, she talks about her recent article titled, “If Trump Declares a National Emergency, He’ll Be Breaking the Law.”

MARJORIE COHN: Well, the only national emergency – besides real and national emergencies like climate change, which is a bona fide national emergency – has been created by Trump. Now in terms of declaring a national emergency, which he may see as the only way to reopen the government without giving in on his wall demand, he would be on shaky ground. During the Korean War, President Harry Truman tried to seize the steel mills to avoid a union strike that would have shut them down and Truman was claiming authority in support of the war effort, and yet the Supreme Court shot him down. All the justices were Democratic appointees and he was a Democrat as well. The 6-3 majority shot him down and said, “No, you can’t do that.” The seminal case is Youngstown versus Sawyer. Justice William O’Douglas wrote a concurring opinion and he said, the president cannot use usurp Congress’ spending power to approve money to pay for the taking of the steel mills’ private property.

Would it be a similar situation here? The Constitution gives Congress the power of the purse. Justice Robert Jackson, who took a leave from the Supreme Court to be the chief U.S. prosecutor at the Nuremberg war crimes trial, wrote a concurring opinion with three prongs and that is the litmus test for measuring executive power. And I should say that Justice Jackson cited Hitler’s use of a temporary suspension of rights to take full power in Nazi Germany. So I know that people get nervous when you make comparisons with Nazi Germany, but Justice Robert Jackson did that himself. Now, in terms of the three-prong test from Youngstown, which we must apply – and the Supreme Court ultimately would probably apply to determine whether or not Trump’s declaration of a national emergency was legal, are as follows: The first prong is that when the president acts with express or implied authority of Congress, his power is at its greatest.

Congress has not appropriated $5.7 billion to build Trump’s wall, and if he were to declare a national emergency to fund the wall, Trump would not be acting with the authority of Congress. The second prong of the Youngstown test is that in the absence of a grant or prohibition by Congress, the president can rely only on his own powers. And Justice Jackson said the president would be acting in a zone of twilight where he and Congress may have concurrent authority, or it would be unclear how the distribution of power between Congress and the executive would be. It depends on the situation. So Trump would probably try to invoke the National Emergencies Act of 1976, which was actually passed to limit the president’s ability to declare a national emergency. Although it does include the responsibility of Congress to override a declaration of national emergency and that would take two-thirds of the Congress.

But that act would not apply; would not support Trump’s declaration of a national emergency in this situation because that act only allows the president to divert funds that have not been obligated – and use them for construction projects that are necessary to support the military. Now there’s been some talk that he is considering taking some of the funds that have been allocated for disaster relief such as in Puerto Rico after the hurricane or in California after the fires, and use them for his wall. But they had been obligated, they’d been obligated for those disasters.

But assuming that he could use them – assuming they hadn’t been obligated – he would have to use them for construction projects that are necessary to support the military. Now he would argue that the military is at the border helping the Customs and Border Protection because he sent thousands of U.S. troops to the border. But the use of the military to enforce domestic law – and immigration is domestic law – is prohibited by the Posse Comitatus Act. So any attempt by Trump to declare an emergency in order to justify diverting funds for his wall to help the military enforce immigration law would violate the Posse Comitatus Act.

And then the third prong from the Youngstown case is when the president seeks to circumvent the express or implied will of Congress, his power is at its lowest ebb. He can only rely on his own constitutional powers and presidential claim to such power must be scrutinized with caution. In addition to being illegal – and I think it is – it’s also an abuse of power. It’s a cynical political stunt. I think that everybody realizes that, or at least most people realize it. It’s an abusive power and abuse of power was one of the articles of impeachment against Richard Nixon. So the House of Representatives, which is now in Democratic hands, could issue articles of impeachment against Trump. I mean, there’s obstruction of justice and all kinds of other charges they could bring as well. But impeachment is a political process, according to Alexander Hamilton and The Federalist papers. And abuse of power, even if it’s not a crime, is still grounds for impeachment.

Marjorie Cohn is author of the recently updated edition of “Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.” 

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