Can the president use “emergency authority” to build the wall? Part 1
President Trump has threatened to use “emergency authorities” to build the southern border wall. He asserted that he has the emergency authority to do this “very quickly,” even without congressional approval. Does he?
Quick summary
The short answer is 1)his lawyers can make a tenuous case that might or might not stand up under legal challenge that he has authority to seize land and award contracts to build the wall, and 2) if he has that authority, then there's no question he can tap the Military Construction budget to fund the project.
However, the bad news for Trump is 3) the total budget request for "Military Construction and Base Housing" was just over $11B, so the amount that could be reprogrammed to the wall would be a drop in the bucket, 4) the only other source of funds is what he already has, going to Congress and asking for an appropriation, and 5) there is no way to use emergency authorities to get around the thousands of inevitable eminent domain lawsuits or the dozens of requirements for environmental studies, habitat and wetland mitigation, etc., and the inevitable lawsuits that will follow those studies. These lawsuits could delay the border wall project for a decade or more, whether the Trump administration uses emergency authorities or not.
The longer answer
The first step in a project such as a declaration of emergency to build a border wall would be for government lawyers to scan the law books in hopes of finding some obscure legal authority that will let them do it. Creative government lawyers often find legal authorization where they can for actions they want to take. For example, before the passage of the Clean Water Act, the first law used for cleaning up water pollution was the 1899 Rivers and Harbors Act. A bit of a stretch, but a 70 year old law that prohibited dumping “refuse” that would “impede navigation” was creatively used in the late 1960s to clean up paper and steel mills.
What is a national emergency?
Until 1976, there were few limits on the power to declare a national emergency. But the 1976 National Emergencies Act (50 USC 1601-1651) terminated all previously declared national emergencies, de-activated “national emergency” authorities (with a few exceptions), and established a mechanism for future emergency declarations. When a president declares an emergency, he must state what the emergency is and cite the specific authorities he is using. He can only use authorities that already exist: he can’t just make up presidential authorities. For example, the Emergency Economic Powers Act gives the president certain authorities in time of emergency. If the president declares an emergency and invokes those authorities, those are the only ones he can use. (Incidentally, these particular authorities are frequently used to block or seize foreign assets.) If he wanted to use different emergency authorities (for example, the authority to seize TVA lands), he would have to declare a separate emergency and invoke those new authorities.
Authorities
The president’s claim that “I can start quickly” really breaks down into three questions:
Does he have emergency authority to acquire land and build the wall, even in the absence of congressional authorization?
Does he have emergency authority to spend money on this project, even if no funds have been appropriated?
Can he use the declaration of a national emergency to bypass environmental and other laws that otherwise would add decades and billions to the time and cost of building the wall?
The good news for Trump: Authority to build the wall
There is one law, Public Law (PL) 85-804 (50 USC 1431-5) that gives broad authority to make contracts without regard to other legal requirements. This authority doesn’t even require a national emergency; it can be (and is) used every day. Normally it is used for mundane purposes like waiving requirements for competition in contract awards or authorizing contract adjustments and overruns. It’s very doubtful anyone intended it to be used to start a multi-billion dollar project such as the wall (though it has been used to approve cost overruns, like the notorious C-5A contract in the late 1960s, that were larger in real terms than the current $5B request for wall funding).
More good news for Trump: Authority to take land
When Trump claimed he could take the land immediately, the president was undoubtedly referring to 10 USC 2663, land acquisition authorities. This law gives authority to the military to condemn or acquire land rapidly for munitions production, power transmission, or “the site, construction or operation of fortifications, coast defenses or military training camps.” The military may take land immediately and begin to use it “in time of war or when war is imminent” (which almost certainly doesn’t exist now) or “when the need is urgent.” (which might). Existing military construction funds can be used to pay for projects if they are “urgent.”
Another law, 10 USC 2808 discusses military construction projects in a national emergency. It declares that in a national emergency that requires use of military forces, the president can undertake military construction projects not authorized by law if they are needed to support the military forces. This seems to be intended for projects such as temporary bases in combat zones and the legal reasoning to support the wall would be weak.
These laws are not intended for a project as massive as the southern border wall. But a tenuous legal case could be made that they add up to authorize such a program of land acquisition and construction. There would undoubtedly be lawsuits and the outcome would depend in part on whether the courts agree that the wall is a “fortification,” whether the need is “urgent,” etc. The fact that the Administration spent two years not using this authority would probably not help their case that this is urgent. Nor would the fact that so many of the justifications (terrorists crossing the border, etc.) have proven to be untrue.
Leon Reed is a retired Congressional aide and defense consultant. He is a member of the Government Accountability Task Force of the Gettysburg Democracy for America.