A new Congressional Research Service (CRS) report issued Thursday lays out the potential legal pitfalls awaiting President Trump should he attempt to declare a national emergency to gather funds to build a new barrier at the U.S.-Mexico border.
Since Dec. 22, the U.S. government has been at an impasse in negotiations to fund Trump’s desired wall at the country’s southern border. Trump has refused to sign a bill that does not include $5.7 billion for the wall, and Senate Republican leadership has stood by him. Meanwhile, congressional Democrats have set the maximum at $1.6 billion, the amount included in an appropriations bill passed by voice vote in the Senate Dec. 20.
The result is a partial government shutdown that has affected 800,000 federal employees across various government agencies including the Transportation Security Administration, the Federal Aviation Administration and the Coast Guard. As of Friday, it is tied for the longest government shutdown in U.S. history at 21 days.
Trump has in recent days hinted at plans to declare a “national emergency” under the 1976 National Emergencies Act (NEA) and use military construction authorities to build the wall, should a resolution not be reached with members of Congress. But three legislative attorneys note in a Jan. 10 Congressional Research Service (CRS) report note that such a decision is likely to be subject to litigation.
“Upon declaring a national emergency pursuant to the NEA, the President may invoke the emergency military construction authority set forth in 10 U.S.C. § 2808 (Section 2808),” the report, titled “Can the Department of Defense Build the Border Wall?” states. However, “the circumstances in which the Section 2808 authority could be used to deploy fencing along the border appears to be a question of first impression, and one that is likely to be vigorously litigated,” it adds.
The first issue will be a dispute over whether the circumstances at the U.S. southern border factually merit the declaration of a national emergency, the authors said. Second, even if a court were to conclude that the situation did merit the declaration, it would then have to assess whether building a new border wall qualifies as a “military construction project” within the confines of the law as written.
Last, a court could also debate the necessity of building the border wall in certain areas of the border, the report says.
Similarly, the Trump administration may face significant lawsuits if it attempted to seize private lands along the border, the report’s authors note, adding, “Property owners whose lands are seized through eminent domain to construct border fencing would likely have standing to challenge the legality of such seizures and the underlying invocation of the relevant statutes.”
Trump told reporters Friday after a closed roundtable with Customs and Border Protection officials in Washington, D.C., that he “would rather not” declare a national emergency to build the wall, and acknowledged that he could be sued and possibly lose the case before potentially bringing it before the Supreme Court.
“Congress should do this. … If they can’t do it, I will declare a national emergency,” he said.
Members of Congress have expressed differing opinions on Trump’s threat to use the NEA to get his wall. Sen. Lindsay Graham (R-S.C.), a former Senate Armed Services Committee member and the new Senate Judiciary Committee chair, on Thursday urged Trump to build the wall after declaring that negotiations between the congressional Democrats and the White House were going nowhere.
“It is time for President Trump to use emergency powers to fund the construction of a border wall/barrier,” Graham said in a Thursday statement, adding, “I hope it works.”
House Armed Services Committee Chairman Adam Smith (D-Wash.) said the House Democrats would sue the Trump administration if he does choose that route in an interview on MSNBC Thursday evening.
Smith reiterated that point Friday to Defense Daily on Capitol Hill, noting that Trump has “a whole bunch of different pots of money that he can go after” for border wall funding.
The “most likely course of action” is Trump targets civil works money that typically funds flood mitigation and other disaster relief efforts, Smith added. “But no matter where he goes, no matter where he tries to take the money, we will sue and say that ‘This isn’t an emergency and you’re circumventing the legal process.’”
There is bipartisan opposition to Trump attempting to use Pentagon funds for the border wall, Smith added. “How much bipartisan opposition there is to him taking it from elsewhere, I don’t know.”
Rep. Mac Thornberry (R-Texas), the HASC ranking member, told reporters Tuesday that he was not supportive of “defense funds being used for non-defense purposes.” While he acknowledged that the definition of defense could be used by some to apply to border wall protection, he added that Homeland Security funding should be fully funded, separately from the Department of Defense (Defense Daily, Jan. 8).