President Trump’s threat of a national emergency declaration in order to build a border wall won’t hold water in the federal judiciary.
That’s according to Dr. Erwin Chemerinsky, dean of the University of California-Berkeley law school. Chemerinsky wrote a column in the Los Angeles Times about the constitutional barriers Trump would circumvent with his emergency declaration. He said that there’s already precedent of a past U.S. president improperly using emergency declaration powers for purely political purposes, and having that declaration defeated in court.
Chemerinsky told Grit Post that one of the lower courts — at the district or circuit level — would likely find the declaration invalid. Should that happen, it’s likely Trump would appeal the decision to the Supreme Court. However, given past precedent, it would be difficult to see the Supreme Court ruling in Trump’s favor, even with the current conservative majority.
“President [Harry S.] Truman claimed inherent emergency powers to seize the steel mills during the Korean War. The Supreme Court declared it unconstitutional,” Chemerinsky told Grit Post. “The Constitution does not give the president inherent powers and the federal statutes that do are inapplicable.”
“I think the courts will declare Trump building the wall without congressional authorization to be impermissible,” he added.
The example Chemerinsky used is particularly noteworthy, as it was not only an emergency declaration, but one made during wartime. And as commander-in-chief of the U.S. military, it’s generally assumed that the President of the United States can take whatever actions are necessary during wartime to aid the war effort.
However, in the instance of Truman and the Korean War, one Supreme Court justice wrote that seizure of steel mills would require appropriation of funding, which is a Congressional responsibility — not a presidential one. Two other justices elaborated in their individual opinions on the case that while Congress had mulled the idea of granting the president the responsibility of appropriating funding during national emergencies, they had ultimately decided not to do so.
In his column, Dr. Chemerinsky wrote that the legal argument President Trump is trying to make is that the executive has the authority to direct the military to build the border wall under the National Emergencies Act of 1976. However, that language only allows for construction projects that would directly support the U.S. armed forces, and, according to Chemerinsky, the border wall does not meet that standard.
“This is about Trump wanting to carry out a campaign promise, not an emergency that has suddenly arisen,” Chemerinsky wrote. “Any attempt by Trump to build the wall without congressional approval would be a grave threat to separation of powers.”
You can read Chemerinsky’s full column here.
Carl Gibson is a politics contributor for Grit Post. His work has previously been published in The Guardian, The Washington Post, The Houston Chronicle, Al-Jazeera America, and NPR, among others. Follow him on Twitter @crgibs or send him an email at carl at gritpost dot com.