Congressional Research Service: President Can Build Border Wall Without National Emergency or Additional Action by Congress
Washington state Democrat and House Armed Services chair Adam Smith said President Donald Trump does indeed have the authority to declare a “national emergency” and use the military to build his Mexican border wall.
Speaking on ABC’s “This Week” Sunday, host George Stephanopoulos asked Smith whether Trump has the legal authority to “declare a national emergency” in order to get taxpayer funding for his proposed border wall. Smith replied Trump can legally make good on his threat to use the military to build the southern border barrier, he would be wasting billions in Defense Department money, and hurting national security.
The Congressional Research Service (CRS) disagrees.
By Michael Patrick Leahy
CRS says President Trump has the legal authority to build significant portions of a border wall without additional congressional authorization or declaring a national emergency.That conclusion was reached in a report released by the nonpartisan federal agency on January 10. A Department of Defense official made a similar legal argument in testimony before the House Armed Services Committee on Tuesday.
Until the CRS report was released, most of the national discussion surrounding President Trump’s authority to build the wall on the southern border – which he promised in his successful 2016 presidential campaign – focused on only two legal options: (1) his current request for Congress to appropriate $5.7 billion in the current fiscal year to build the wall, or (2) the possibility that he could invoke his authority under the National Emergencies Act, enacted in 1976, to build the wall.
The refusal of Congress to appropriate the $5.7 billion for the border wall prompted the partial federal government shutdown that began on December 22 and ended on January 25, when the president agreed to reopen the government for a brief three week period to allow congressional negotiators to hammer out a deal. Almost one week into that period of negotiation, it remains unclear if a deal will be struck. The president himself placed placed the odds of success at “less than 50-50.”
The entire article may be viewed here: Breitbart
Since Pelosi shows no sign of bending, these negotiations seem doomed to failure. Trump will have to fall back on Plan B. Or C. Maybe even D. Which he knew all along.
Tip of the hat to Poetrooper for the link. Thanks, buddy.
No deal will be reached. The GOPe doesn’t want a wall either.
They all know that -NO WALL- being built will is ‘political suicide’ for Trump.
Trump will have to find another way.
I hope he looks Pelosi right in the eye during the SOTU address and announces a national emergency and declares an executive order to build the wall.
Furthermore, I believe that no member of Congress ought to be afforded use of military or government owned aircraft for any domestic flight.
Just the savings in fuel alone would be enough to build the wall twice over.
There is a Congressional Travel Office that they are supposed to go through in booking flights. I don’t have much in the way of detail on that beyond that, other than the fact that it does not get much use.
I never realized until Trump was elected what a Federal judge in a state like Hawaii was capable of stopping even if it’s just for the time being…Is there any wall option on the table that cannot be held up by one of these dick head judges…???
Nowhere In the Constitution does it say that Federal Judges have veto authority over the day-to-day operation of the Executive. The three branches are supposed to be co-equal, with specifically enumerated powers.
Unless the Executive pushes back against the power grab, it will soon be only Judges ruling the country. First, by saying “no” to whatever they do not like. Then follows “do this instead”.
A reading of the Declaraion is instructive. This is not the first time this land has been plagued by tyrants in black robes, seeking to command the State as they will, thus to rule the People.
When was the last time a black robed tyrant stopped O’Bozo’s ruling by Executive Order, Phone and Pen?
As far as I understand, the Black Robed Ones are supposed to decide over law passed by the KKK (Kongressional Klown Krew)
He should just do what Obama did when a judge ruled against him; ignore it and do what you want anyway. Then go on about how he’s “on the right side of history.”
Again we have the hypocrisy of Congress. How many billions have already been “allocated” in the past? Oblowme rammed his ACA down our throats, shoving it up our asses without even the common courtesy of a reach around. Hundreds of billions in CASH shipped out to Iran, God only knows what all else. BOTH PARTIES are guilty as sin and have been f’ing the taxpayer for decades. They will continue f’ing us until we either fire them and hire new ones or someone decides to kill them all and let God sort them out.
The majority of Congress would just as soon destroy the US to save their jobs and power than to do the job they were elected to do. Grrrrr
BUILD THE F’ING WALL MR. PRESIDENT!
Term Limits
It’s long past time for the citizens of this country to ram such an amendment up the political aristocracy’s ass. Two terms in the House, one in the Senate. Say eight as veep and eight as prez, that means the most successful politician in America will still get 26 years in federal office, with the majority getting no more than 10. I’d say that’s plenty.
Term limits haven’t seemed to help your state. Not that I’m against them, far from it. Just that in a de facto single-party system, they don’t fix any of the problems they were supposed to.
Alright, so build that shit! Enough dicking around!
And I’m with Tallywhagger: congresscritters can fly commercial, or charter their own jets. Not like they can’t afford it! Let that be the first of many unconstitutional “congressional perks” to be eliminated!
👍👍👍✋
Time to put a tax on politicians. The longer they serve the higher the rate. Let them pay for all the programs they put in place.
Build the damn wall Mr. President. The hell with the rest of the politicians.
For a supposed Tyrant, Mr. Trump is surprisingly hesitant to rule by “pen and phone”.
But we knew that “Tyrant” charge was projection by the opposition.
Lookin’ at the “Emergency” path, I’m not so sure that’s one down which we want to start. Settin’ that precedent could lead to say, President Booker in 2025, declarin’ an emergency involving “gun violence” and banning firearms, sling shots and potato cannons.
The CRS idea sounds a whole lot better to me.
YMMV
Trump would be acting under granted statutory authority that a Congress passed and a President signed. It is not made up from nothing.
Plenty of wartime examples of both use and abuse.
Trump -is- quite adept at navigating byzantine rulesets, like NYC real estate laws.
I agree that such laws need reigned in. But as long as the other side bends, folds, spindles, and mutilates statutory authority, should we not play the sport by the rules present on the field?
I’d just like to see POTUS with enough appointments to SCOTUS that we can rein in most of the powers expanded through regulatory abuse and executive orders.
Yeah, I know, fat chance.
Speaking of SCOTUS, have they pickled RBG in Formalin yet?
Hell, API, we all know how that’ll work out. If’n they had a competency hearin’ for her an’ she failed, the Lefties would say she couldn’t resign ’cause she wouldn’t know what she was doin’.
Trump has already called three States of Emergencies. Surprised?
Pacific Standard
AW1Ed. Commo check.
Copy, have you Lima Charlie, how me over?
Tucker did a piece on this the other night. The first and longest “emergency” is the 40 year old Iranian one. The average time for an emergency is 9.5 years!
I don’t think that word means what Congress thinks it means.
“I don’t think that word means what Congress thinks it means.”
They know very well what it means- they’re counting on the ignorance of the populace to make it seem something it’s not
Nanny Lugosi and the D-rats have been doing all they can to block President Trump from day one and he knew they would and I’m sure he’ll play them like cheap fiddles at an all night barn Dance!
“Smith replied Trump can legally make good on his threat to use the military to build the southern border barrier, he would be wasting billions in Defense Department money, and hurting national security.”
I don’t know how to take it when a member of Congress talks about someone ELSE wasting billions in DoD money. Maybe he thinks they are the only ones allowed to waste DoD money?
Yet another “caravan” poised to invade about the time of the SotU, followed closely by the latest continuing resolution expiring. Coincidence?
No, Pelosi et al are not changing their spots. They continue to act like spoiled children, throwing tantrums when they don’t get their way. Oh, well.
Pelosi, mumbling while she clutches her pearls, has backed herself into a cormer. Life would have been so much easier for everyone had she, and the compliant Reps of the GOP, just done what was right in the first place.
Just build the damn thing already, if for no other reason it pisses off the liberals and reduces their fan base. If possible, take the money from a program that is a democrat pet project. Like any program that results in free shit for life.
That’s not really what the CRS report says. For one, CRS is a research outfit that provides background information to support Congress in the formulation of policy. Nothing they say carries the weight of law or legal decisions. This report lays out the legal arguments for and against using DoD funds to build the wall, and basically says that it would be up to the courts to decide if either would be legal. It isn’t really about authority- the President can direct the military to do anything he wants, and as long as it is legal and ethical, DoD and the Military Departments will execute. It is totally legal and ethical to deploy troops to the border, and well within the President’s authority to do so. It’s about money- specifically, how Congress has appropriated it. As strategist say, show me your budget and I will show you your strategy. No money, no plan. In other words, POTUS can deploy the 36th Engineers and other units to the border, and they can use what they have on hand to operate, sustain themselves, and erect limited barriers (basically, until they run out of concertina and pickets). You still need money to either a) contract a civilian firm to build the wall, or b) buy building materials so Soldiers could do it. There are two paths: National Emergency and Title 10 . Under a National Emergency, there is a provision to use MILCON (Military Construction) funds for certain purposes, and it is arguable if building the wall meets some very specific guidelines. There would be legal challenges in federal courts almost immediately (I am sure there are teams of lawyers working on them as we speak). Title 10 is much the same. The President would basically be saying that building the wall is part of the missions of the military departments, and therefore he is justifiable in using MILCON money for that purpose. Again, there are very specific guidelines, and while this it is arguably legal, there will be challenges in court. Regardless, he would be re-appropriating (the Dems would say ‘misappropriating’) those… Read more »
I think that what you offered is a fair snapshot of the report, which I just finished reading. I could quibble with a few things, but, all in all, the report does a good job of laying out the potential repercussions of Trump’s using emergency powers. Any contention by the Left that his doing so would be extra-constitutional or unconstitutional is silly. Congress itself passed the laws that allow him to invoke the powers, and it will be a court or two or ten that chimes in about the issues attendant to his doing so.
Exactly. It will come down to the money. Declarations can get things moving quickly with assets available on hand, but until you get money authorized you will be limited in what you can do.
If you look at the DoD budget, there is a separate line item for OCO (Overseas Contingency Operations), which is funding for Iraq, Afghanistan, etc.
Even in WWII, with a Congressional Declaration of War, Congress got involved in how much would be appropriated for various purposes. Broadly speaking, even though we made the ‘Germany First’ decision, we had to decide how much force, food, bullets, and gas the nation would pay for, and how much would go to the Pacific. It was not a blank check.
So, the president can send forces, and they can do what they can do, but whatever it is will be a tradeoff with other priorities.
We confused the obstacle (literally) with the problem. The problem is bad security, which is a multifaceted issue. A wall is one part of the solution, but everyone is perseverating on it from one side or the other. it has become the bumper sticker.
The way to do this right is to craft the DHS budget so it has funding for enhanced security- more agents, better surveillance, the right type of barriers in the right places, and bigger and better processing facilities as determined by the Secretary of HLS and his subordinate leaders. My guess is the bill for more agents would be the biggest part of the budget, by the way.
Both sides will declare victory and we will get better security on the border.