Can the president use “emergency authority” to build the wall? Part 2

As argued in the first part of this essay, the president’s lawyers can undoubtedly concoct a legal argument to support a rapid start and redeployment of funds approved for a different purpose. However, that is the extent of the good news for the wall advocates.

Existing military construction funding can be used for acquiring land (and presumably construction) if the military can show the need is “urgent.” This law (10 USC 2663, the same cited previously) might be cited as authority to pay for the wall.

As noted in the previous section, 10 USC 2808 authorizes some types of new military construction projects in a national emergency, but only using funding from the military construction budget. Another law, 33 USC 2293, allows termination in an emergency of authorized military civil works projects and transfer of funds to other projects, but this too would only raise relative spare change.

The amount of funding available would be a serious constraint. The president’s total FY2019 budget request for “military construction and base housing” was for $11.4 billion.  The $5B for FY2019 is a small down payment on the total cost of the wall -- $100B is probably a reasonable estimate for land acquisition (and lawsuits), engineering and environmental studies (and lawsuits), wetland and habitat mitigation, building access roads and other infrastructure, and the actual design and construction of the wall. There simply wouldn’t be that much slack in the military construction budget, either this year or on a year after year basis. If additional funds are needed, then we’re back where we started – the president needs to request funding and work it through Congress.

An idea has been floated that the president might reprogram money already allocated for disaster relief. This source of funding is more questionable, especially if the president has cited defense authorities and transformed the wall in to a military project. It would be hard to move DHS money (disaster relief) to the wall. Besides the political unpopularity of this move, it would undoubtedly be open to lawsuits.

“National emergency” waivers

One of the big questions is whether it’s possible to cut all the “red tape.” If not, eminent domain and environmental lawsuits could delay segments of the wall by years or decades.

The most significant federal law that will slow construction of the wall is the National Environmental Policy Act (NEPA), which requires an environmental impact assessment of any “major federal action.” Plaintiffs can and have sued extensively under NEPA, not on the basis that the project is a bad project, but that the environmental impacts haven’t been studied adequately.

The environmental impacts of the wall project would undoubtedly be the most extreme of any project undertaken since NEPA was passed: effects would include wetlands, wildlife habitat and migration routes, water usage patterns, creation of boomtowns and other local impacts, endangered species, road construction, floodwaters, etc. It is easy to ridicule these requirements and denounce them as “red tape and regulations,” but the law has been on the books for nearly 50 years, there have been literally thousands of lawsuits, and the requirements are well settled and well understood.

There is no “national emergency” exception to the requirements of NEPA. Guidance has been given that authorizes limited exemptions in the event of “emergency circumstances.” Trump would probably argue that “the crisis at the border” is an emergency circumstance, but it’s pretty clear that this exception was intended for a situation like a natural disaster. And even this limited exception authorizes only “alternative arrangements” to comply with NEPA, not an exemption. There is little doubt that if the Trump administration tried to cite this – or any other reason – as a justification for ignoring NEPA that lawsuits would be filed which would themselves tie the project up for years.

Other considerations

Even if a case can be made that the authorities discussed in this paper can be used (in doubt), using them would make a fundamental change in the wall project. Customs and Border Patrol, ICE, and other immigration enforcement agencies are all civilian agencies. Using the authorities discussed here would turn the southern border wall into a military project and the border area, in essence, into a military occupation zone. That’s a mission the military doesn’t want and one that the American people shouldn’t want the military to do.

It’s also worth thinking about how the current situation is changing the public understanding – and perhaps the congressional understanding  -- of what a “national emergency” is. People often imagine that declaring a national emergency means something like a nuclear war or massive national catastrophe like “the big one” on the San Andreas Fault has occurred. But under the NEA, a national emergency declaration is simply a procedural step to unlock some specific already approved authorities. 

In the current crisis, the president – as well as those raising a fear of Democrats declaring a “climate change” national emergency – appears to be redefining our understanding of what an emergency is, perhaps moving toward something more like the unconstrained set of authorities that presidents used before passage of the NEA. Congressional committees will need to keep a careful eye on how these authorities are used.

Summary

It seems the president’s lawyers might be able to paper together a tenuous legal justification to authorize land seizures and construction. But there seems to be no getting around the need to get funds from Congress or the vulnerability to eminent domain and environmental lawsuits. Politically, the authorities might be enough to allow the president to claim a victory.

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.