February 18, 2019


Donald Trump can call a 'national emergency,' but that doesn't mean he can build the wall (Ilya Somin, Jan. 22, 2019, USA Today)

Poorly drafted laws give the president a wide range of easily abused emergency powers. Even if he can declare a "national emergency," however, that does not mean he can use it to pay for and build a wall.

Some point to 10 U.S.C. 2808 and 33 U.S.C. 2293 as possible justifications. But Section 2808 states that, during a "national emergency" that "requires the use of the armed forces," the president can reallocate defense funds to "undertake military construction projects ... that are necessary to support such use of the armed forces." No threat posed by undocumented immigration "requires the use of the armed forces," and it is hard to see why a wall is "necessary to support such use."

In fact, as Yale Law School professor Bruce Ackerman explains, longstanding laws bar the use of troops for domestic law enforcement (including enforcing immigration law).

Section 2293 also only applies to a war or emergency that "requires or may require use of the armed forces." Another federal law allows the military to condemn property for various purposes, such as "fortifications." But that only extends to projects for which funding has been appropriated by Congress.

Arguments that Trump can use disaster relief funds to build the wall are even more implausible. [...]

Even if the president can use emergency powers to get funds, that does not mean he can seize property by eminent domain. The Supreme Court has long held that the use of eminent domain must be expressly authorized by law. No emergency law expressly permit the use of eminent domain for border walls not otherwise authorized by Congress.

Building Trump's wall requires using eminent domain on a massive scale. A third of the needed land is owned by the federal government. The rest would have to be taken from private owners, Native American tribes and state governments, many of whom are unlikely to sell voluntarily.

The result would be one of the largest federal condemnations in modern U.S. history. In Texas alone, there are almost 5,000 privately owned lots in the likely path of the wall. Securing the land and building on it is likely to be costly and time-consuming. Construction and legal battles over compensation can drag on for years.

This reality underscores the absurdity of claiming that a wall is needed to combat an "emergency." Emergency powers are intended to address immediate threats that cannot be dealt with by slow-moving legislative processes. If the supposed emergency can be fixed by a wall that takes years to build, this means it was not an emergency in the first place. In reality, there is no genuine crisis that a wall could fix. It would not even meaningfully reduce undocumented immigration.

Posted by at February 18, 2019 12:01 AM