IT'S JUST A POLITICAL MATTER:

Much of the discussion surrounding possible legal vulnerabilities has focused on the president's declaration of emergency. But that may be an area of less vulnerability than many believe. The NEA does not actually impose any substantive requirements for what constitutes a "national emergency"; instead, it focuses on procedural and similar requirements, which the Trump administration so far appears to be following. While Trump's declaration no doubt stretches the limit regarding what many think of as a national emergency, Congress's failure to incorporate many of these requirements into law gives the federal courts remarkably little to work with in limiting the president's actions. Combined with the fact that courts tend to be deferential to the executive branch in such circumstances, this makes a direct challenge to the national emergency declaration itself a slimmer prospect than many hope.

More vulnerable, however, are the other statutory authorities that Trump is relying on. Can § 284's authorization to build a "fence" to "block drug smuggling corridors" really be used to build a wall across the entire southern border? Is the wall really a "military construction project" of the sort authorized by § 2808? Does the president's declaration of national emergency really "require[] the use of the armed forces" as required by § 2808? The patchwork of legal authorities on which the Trump administration is relying exposes the administration to a wide array of these challenges. One possible outcome may be a partial victory and partial defeat, in which the Trump administration is able to rely on some authorities and associated funding but not others. Regardless, plaintiffs are likely to seek--and federal courts seem likely to grant--injunctions that stop the federal government from taking any irrevocable steps towards building the wall while these legal challenges are resolved. In this sense, the primary function of these challenges may be to buy time until Congress is able to impose new limitations on the use of these funds and authorities, or even until a new Congress or a president is elected in 2020 who no longer wishes to pursue this agenda.

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