Is Declaring a “National Emergency” to Build the Wall Legal?
The president’s prime time address to the nation wasn’t intended to persuade dogmatic Democrats or to even convince skittish RINO Republicans that a real crisis exists on our southern border.
The brief Oval Office address was designed to lay the groundwork, to first address the American people directly regarding the daily threat to America’s sovereignty — by reiterating the human tragedy of American citizens falling victim to illegal aliens and addressing the growing humanitarian hardship facing thousands of migrants at the border.
On Monday Kellyanne Conway, senior counselor to the president acknowledged that President Trump was “considering” declaring a national emergency to build the border wall and that White House lawyers had been looking at the “legal implications” of it.
“There are probably some people who want him (Trump) to declare it (the emergency) so that Congress, again, can fail to do its job,” she said. “The Congress and the courts have failed to do their jobs. They’ve given us this crisis.”
Conway’s brief public comments a day before the president was to address the nation, was a brilliant tactical maneuver by the White House, in getting the press to speculate on whether he would declare a “national emergency” during his address.
The presidents speech tying together both the humanitarian aspect of thousands of migrants living in squalor, just outside our border, and protecting American citizens from violent criminal aliens, and the number of drugs, including methamphetamine, fentanyl, and heroin pouring across our border, negates the Democratic talking-point that the crisis on our southern border is “manufactured.”
Especially when Trump cleverly made the humanitarian issue a key component of his 9-minute address to the nation, “This is a humanitarian crisis, a crisis of the heart and a crisis of the soul. Democrats in Congress have refused to acknowledge the crisis, and they have refused to provide our brave border agents with the tools they desperately need to protect our families and our nation.”
By highlighting the plight of the thousands of illegal migrants, the President (I believe) has cleverly outmaneuvered both House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer, who seemed reluctant to actually address the President directly regarding the situation at the border, but instead focused on the government shutdown, which suggests they may have been fearful of being perceived as being in agreement with the President.
Moreover, unless there’s an 11th-hour face-saving breakthrough, look for the President to declare a “National Emergency” in order to build the wall.
White House lawyers for weeks have been looking at ways where the President can legally redirect unspent funds towards the construction of his wall. And have concluded that two laws currently on the books may, in fact, give the President the latitude he needs without first obtaining explicit authorization and appropriations from Congress.
One of the laws during a Presidential emergency declaration permits the secretary of the Army to halt Army civil works projects, and redirect troops and other recourses to help construct “authorized civil works, military construction and civil defense projects that are essential to the national defense.”
Another law permits the secretary of defense, during a “national emergency” to begin military construction projects “not otherwise authorized by law that are necessary to support such use of the armed forces.”
Those are the funds set-aside by Congress, however not yet earmarked for any specific projects.
If the President does declare a “national emergency” look for critics and opponents to immediately turn to the courts.
William Banks, a Syracuse University law professor told the New York Times, “I think that it’s possible that the President could declare a national emergency and then rely on authority Congress has historically granted for exigencies to free up some funds to support constructing a barrier along the border.”