The Peoples’ Constitution: Showdown Over the Wall

By Ben Lenhart

Few recent political skirmishes better highlight how our Constitution acts like “guardrails” during a crisis—keeping each branch of government in line—than the current battle between Congress and President Trump over emergency funding for a border wall. This battle takes place over five acts.

Act 1 – Congress Gives President Emergency Powers

Last month’s article explained how the Constitution gives the president very few emergency powers. The Constitution is stingy with presidential emergency powers for good reason: if a president can invoke emergency powers, without limit, to set aside our constitutional safeguards (even if he truly believed it necessary to deal with an emergency) Americans could all too easily lose their invaluable liberties, such as freedom of speech, freedom of religion and due process protections).  One needs only read the newspapers to see, sadly, how common this is around the globe.

Rather than the Constitution, most of the president’s emergency powers come from laws passed by Congress (laws that can be revoked). For example,the “International Emergency Economic Powers Act” gives the president emergency power to deal with an extraordinary foreign threat to the national security, foreign policy, or economy of the United States. Once invoked, this law empowers the president to regulate many types of foreign business in ways he counld not without the emergency. Congress has also given emergency powers to the president in many military settings, and one such law is at the center of the current debate over the wall.

In February, after a 35-day government shutdown, Congress passed a law providing for $1.4 billion in funding for border security including a fence, but this fell far short of the $5.7 billion that President Trump wanted for the border wall. This law did not include any emergency powers for the president.

Act 2 – The President Uses Emergency Powers.

Largely in response to Congress’s failure to fund the border wall, on Feb.15, the president declared an emergency on the southern border and announced his plan to use his emergency power to fund the border wall. He cited two laws to justify these emergency actions. First, he pointed to a law dealing with emergency military construction (the “EMC” law) which states:

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects … not otherwise authorized by law that are necessary to support such use of the armed forces.Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction … that have not been obligated.” 

The president also cited the National Emergencies Act “(NEA”) of 1976.  While this law grabs lots of press attention in the border wall dispute (due partly to its name), it will ultimately have less importance than the EMC law quoted above. Why? Because the EMC law is where Congress actually gives the president emergency power to undertake “emergency military construction projects.” In contrast, the NEA is mostly concerned with process —it lays out how the president can use emergency powers given to him by other laws (such as EMC) but it does not actually give him any substantive new emergency power. In fact, if the president declares an emergency under the NEA, he must first identify the precise law that gives him the power to do so. To meet this requirement for the border wall, the president mainly points to the EMC law.

Act 3 – Congress Tries to Stop the President’s Use of Emergency Powers

In response to the president’s emergency declaration, on March 14, Congress passed a resolution stating that the border emergency declared by the president “is hereby terminated.” Is this the end of the story? Emergency over? The answer is “no.” Even though the plain language of the NEA gives Congress, the power, by itself, to end a presidentially declared emergency by a joint resolution of Congress (which is what Congress did here), the Supreme Court has ruled that such actions by Congress violate the Constitution. Why? Because of separation of powers: only Congress can pass laws, and only the executive can execute those laws. If Congress can effectively execute the laws—by vetoing any executive action that it does not like—this gives too much power to Congress: it makes Congress both the maker and keeper of the law.

Congress’s resolution also runs afoul of the constitutional requirement that that a law can only be made with “bicameralism” (passed by both houses of Congress) and “presentment” (presented and signed by the President.) A mere “joint resolution” by Congress does not comply with these requirements and does have the force of law.

Thus, even though Congress tried to terminate the border-wall emergency declaration, this “termination” has no legal effect unless signed by the president (or unless Congress overrides a presidential veto).

Act 4 – The President Vetoes Congress

Just a day later, President Trump vetoed Congress’s resolution to terminate the emergency. While Congress is free to override the veto, it has not done so yet, and most pundits think an override is impossible in this case.

Act 5 – The End Game

Attention now turns to the third branch of government: the Courts. In Act 5, the Supreme Court will likely decide who is right. Will it be the president, who argues that he has valid emergency power to fund the border wall, or his critics who argue that he does not. Here are the key points to watch for in this final act.

First, the famous Youngstown Steelcase will be front and center. In Youngstown, the Supreme Court rejected President Truman’s argument that he had emergency power to take control of the countries’ steel mills to support the military effort in the Korean War. Youngstownis famous for setting up a three-part test—still used today—for analyzing whether a President’s action is constitutional.

Part 1: the president’s authority is strongest when he acts in accordance with authorization from Congress.

Part 2: the president’s authority is in a middle ground when he acts on a subject where Congress has been silent.

Part 3: the president’s authority is weakest when he acts contrary to authorization from Congress.

Both sides have ammunition here: President Trump will argue that he fits within Part 1 because his emergency declaration was made pursuant to the NEA and EMC laws. His critics will argue that is emergency action falls under Part 3 because Congress spoke loudly and clearly in 2019 when it authorized only $1.4 billion for border security measures.

Second, does the EMC law support the president? President Trump’s critics will argue that the President’s arguments fail because the very law he cites for his “emergency” doesn’t apply to the border wall. The EMC Law requires that the emergency “requires use of the armed forces.” Are armed forces necessary to deal with the president’s border emergency? Next, the EMC requires that the project is “necessary to support use of the armed forces.” How, critics will argue, does the border wall qualify as a project that is necessary to “support armed forces”? Both President Trump and his critics will respond forcefully on all of these points, but they highlight where the battle lines will be drawn in the final act.

Third, only Congress has the “Power of the Purse.” Indeed, Article One of the Constitution gives Congress—alone—the right to pass budgets and authorize spending. But it is perfectly fine for a president to take money already approved by Congress and use it many different ways, so long as that use is consistent with the laws passed by Congress. President Trump will argue that he is not trespassing on Congress’s power of the purse, but is merely using already approved funds to build the wall. Congress will respond that the president is using funds in ways that were not approved by Congress.

         The courts will weigh all of these factors in deciding whether to rule for or against President Trump. Over the years, many uses of presidential emergency power have been allowed, but the court has not hesitated to overrule the president when the president’s actions exceed the powers given to him by the Constitution. Finally, this dispute highlights a key fact that many Americans take for granted: however the court rules—for or against the President—he will follow the ruling of the court. This is not a given.  courts have no armies and no treasury. Presidents have both. With this vast disparity in power, history is littered with examples of rulers who ignored court orders or threw judges in jail (or worse), when they disagreed with the court. American has not suffered this fate, and our strong judiciary, while far from perfect, is admired the world over—thank you John Marshall.


Ben Lenhart

Ben Lenhart is a graduate of Harvard Law School and has taught constitutional law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.

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