January 8, 2019

If the Democratic Congress refuses to appropriate money for border security that includes a wall, what can Trump do?  Alternatives would seem to fall into two areas:  1) declare a national emergency and use the defense budget, and 2) find another source of funding such as confiscated drug money, online donations, etc.  Let’s look at 1) right now, with a follow-up tomorrow on 2). 

There would definitely be a court challenge, because everything Trump tries to do is met with one.  Matt Naham at the Law & Crime website has examined the “national emergency” argument after Trump asserted that he has the power to bypass Congress by declaring a national emergency and building a physical barrier along the border.  He quotes a constitutional law expert, University of Texas Law Prof. Steve Vladeck, who said there’s precedent from one 1950s Supreme Court decision that will cause such an attempt to fail.

Vladeck said that “there was once a major #SCOTUS case in which the President seized property within the United States during what he claimed was a national emergency even though Congress hadn’t authorized him to do so.”  The President was Harry Truman, and the case was Youngstown Sheet & Tube Co. v. Sawyer.  The situation sounds very different to me, as it involves taking control of commercial businesses:  During the Korean War, Truman feared the consequences of a protracted steelworker strike, so he asserted control over the steel mills through Executive Order on national security grounds.  He was reined in by an opinion from Justice Hugo Black.

It does seem to me that right now, Trump should be talking mainly about getting the funds to build the wall, not the confiscation of private property through “military eminent domain.”  The question of eminent domain (with property owners being justly compensated) will become relevant in certain border areas as construction continues, but the ability to seize property is not the first issue to tackle.  He should focus on funding and construction where we can get it done without going to court with property owners.

Prof. Vladeck also noted that although there are laws on the books allowing “military construction projects” when a President has declared a national emergency, the amount spent must come out of “un-obligated” funds, meaning that they haven’t already been appropriated for other military construction, including family housing.  If Trump really is limited to that amount, he’ll have to do the math to see if he can get enough money that way.  I would also think this limitation would apply strictly to the physical wall and not to any manpower or technology that accompanies it.

You lawyers out there, what do you think?


John Fund at NATIONAL REVIEW cited the same steel mill case.  He said, “Few legal scholars believe that the current Supreme Court --- the conservative portion of which is steeped in Federalist Society principles of limited government --- would give Trump the benefit of the doubt in a non-war situation.”

On the bright side, Fund cited the same law mentioned by Prof. Vladeck as a way of possibly getting the money.  Trump can legally use Defense Department funds that are “un-obligated” to fund construction projects during war or emergencies.  According to Harvard Law School Prof. Mark Tushnet, Trump is “on very solid legal ground” in doing this.

The problem comes if Trump tries to use “military eminent domain” to confiscate property.  According to Fund, the military owns less than one-third of the land adjoining Mexico.  (Note:  at least that’s one-third of the problem solved!  Start building.)  The rest belongs to local governments, Native American tribes and private property owners, some of whom may not want to sell.  As a real estate developer, Trump gained a reputation for not always giving due respect to private property rights when they got in the way of a big construction project.  He will need to exercise care when venturing into that area as President.

Fund cites a Quinnipiac poll from last month saying that although support for the wall has risen 10 percentage points in the past year, 54 percent said they didn’t think a wall was necessary for border security.  Experts in the field tell us it is, but Democratic politicians tell us it isn’t.  Come on, folks, who ya gonna believe?

To end the stalemate –- and the partial government shutdown –- Fund suggests a change in tactics.  Trump should brand Congress as irresponsible when it comes to border security (I call that choice of words “being kind.”) and say they’ve given him no alternative but to direct the Defense Department to use some of its unallocated funds for border construction projects.  Legally, it appears he’s in the clear to do this, so let’s go!



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Comments 1-25 of 60

  • Karen Waters

    01/14/2019 06:20 AM

    Border Wall Funding should be relatively easy to obtain in my eyes from the same government officials who fail to act.
    Some of us live on less than $40,000./year. I believe the funds should be gleaned from the political elite! Senators, Representatives, etc making our laws & failing to do their job. Government shut downs...who really suffers? Not Pelosi, Schumer, Reid, mcConnel, Ryan, on & on!
    Cut their pay by 60% (do not give back pay) until this WALL is built. If their fat salaries are cut-then let’s see who would run for office! Who would our true patriots be?

  • Shirley Nona

    01/11/2019 04:53 PM

    With illegal immigration so rampant at the southern border, maybe land owners there would be happy to have the government come in and build a wall on their property. How much land would they need to give to the government to get the safety and security the wall would give them?

  • Carol Miller

    01/10/2019 01:04 PM

    I watched a special last week presenting pro & cons of wall. I believe we should be conversing with Israel, Canada, & other Countries with strict Borders. Design a plan without emeinint domain. Many landowners already protect their land. Tribal Laws, Electronic Fencing. Steel is good with surveillance & electronic fencing. Interesting how so many in illegal Caravan returned after being lied to about entry. They did not all walk here, only for the camera's sake. We cannot afford to take care of our own Women, Children, Elderly. Freeze Congress & Senate's benefits. Let them pay outa pocket for travel, security lunches, dinners etc. Even Family of six is cut off free lunch program if 2 working parents.Time for so many to retire & receive their astronomical benefit package at the expense of The working taxpayers. Definitely need to have drastic revision in what Government is paid. Ludicrous in comparison to military families. Thank you Governor Huckabee & Sarah Huckabee is doing amazing. God Bless America. Carol Miller

  • Colette Wagner

    01/10/2019 11:26 AM

    Can someone tell me why we are hearing nothing about the bill put forward by Ted Cruz? The one where one Mexican will fund the whole wall, El Chapo. I saw it on the Townhall website, but nowhere else. It sounds like a great way to fund the wall. They confiscated Billions of dollars from the El Chapo arrest enough to fund the wall 3 times over, but won't say where that money went. The CIA probably is funding a different drug lord with it.

  • Rick Augustine

    01/10/2019 11:22 AM

    First your thoughts are right on target. There are enough judges in the 9th Circuit Court to challenge anything Trump does. For the next week he needs to pound home daily the human toll at the border, he will do that today. He needs to do that daily. If Democrats don’t move , dot the i and cross the t and declare emergency! Second say now pass the other border regulations and funding needs caused by illegal aliens with a clean bill to open the entire government for at least the fiscal year.

  • David Buitt

    01/09/2019 06:04 PM

    There are people who have started gomefund for the wall. Maybe President Trump can start one for it too since the Dems started one for all of those women who lied at the Kavanaugh hearing.

  • Pixie Kauchich

    01/09/2019 04:47 PM

    It seems that most democrats are liars. it was commented on Fox News that Pelosi and Schumer are pathological liars. According to John 8:44 they are of their father the devil. They practice the lusts and gratify the desires (which are characteristic)of their father. He does not stand in the truth because there is no truth in him. When he speaks a falsehood, he speaks what is natural to him, for he is a liar (himself) and the father of lies and all that is false. Kind of sounds like they and the news media don't represent the American people but their false agendas. When Pelosi and Schumer spoke after the meeting in the WH they twisted what went on with the President not expecting the Vice President to come immediately out and tell the truth of what did happen. I switched to CNN and they too twisted even what the Vice President said after the fact. My concern is for the people that have bought into the Pelosi lies. Also the money should be kept from the congress during the shut down not for hard working gov. employees.

  • William Outland

    01/09/2019 04:37 PM

    I'm for building the wall anyway he can and brand the Democrats as irresponsible for, not protecting the country. Remind people loudly and repeatedly that the Dems. supported the wall until Trump, wanted it. We have the video so they can't deny it. It would also be wonderful if we could somehow charge them with racism. They are familiar with that since they use it so often!

  • Gary Serio

    01/09/2019 04:24 PM

    To fund the wall, how about withholding cash to the source countries of illegals, in the same way as done with sanctions against other countries which commit crimes against America.

  • Julie

    01/09/2019 02:13 PM

    I like the idea of using drug money etc for the wall , would rather Chancy get their party in line to vote on it correctly. But since they hate our president more than want border security we must think of alternative ways.

  • 1SG Robert Wilcox, US Army, Retired

    01/09/2019 01:21 PM

    I believe Nehemiah Chapters 1 thru 6 are parallels of what President Trump is facing. Perhaps military funds and the States will fund and build the wall

  • Marci Mattozzi

    01/09/2019 11:25 AM

    It’s all about winning with the Democrats. They don’t care about The People of this country. No matter what the numbers, I believe they are increasing by the day because the illegals and criminals are ramping up the entrance into the US because they know that there will be a wall and they want in while the gettin’s good. Regardless to the numbers, a vast majority of The People want the wall. And when this is over and the government is up and running again, changes need to happen. If the politicians want to use The Peoples financial livelyhood again for political negotiations, then they should be the first ones not paid. The Military should NEVER not be paid.

  • Sharla Lamken

    01/09/2019 10:39 AM

    One of the duties of the President is to defend our country against enemies. When those who try to come to our country carrying their country’s flag and yelling they’re taking over our country, then they are invaders not refugees. The wall is not the only solution but it puts a barrier up -like the locks on our doors- that slows the invaders down. We also need more manpower. We need to reform our entire immigration laws to include vetting who gets to come here, end chain migration and get rid of the sanctuary statement. I think anyone that wants to come here needs to have a sponsor who’s willing to provide for that person. No government benefits for noncitizens. Also we need better, mandatory oversight for any federal elections. It’s insanity that states are allowing noncitizens to vote. In addition, sanctuary states and cities should be fined daily for every illegal alien it harbors. The President would then get enough money for the wall.

  • Darwin Jones

    01/09/2019 08:55 AM

    There is a Go Fund Me already set up. Go to We the people will fund the wall. He has raised almost $20 million in 23 days. He even went to Nancy Pelosi's office to collect the $1.00 she promised to help build the wall Of course she would not see him. He (Brian Kolfage?) is a triple amputee and I believe him to be trustworthy. At least visit the website and read about it for yourself.

  • Jerry Huff

    01/09/2019 02:09 AM

    Put a Facebook share button somewhere

  • Mary Ann Spade

    01/09/2019 01:24 AM

    Why can't the amount from trade deals and tariffs with Mexico be given out to shut people up that can't understand what the President meant when he said Mexico would pay for the wall.....and why can't he have that money.??I think hiring people waiting on the border to help build the wall is a great idea..take that Nancy Pelosi.
    Also the Fox telethon.

  • Thomas Woods

    01/08/2019 10:21 PM

    Build the wall at all costs. Use a go fund me account

  • Theodora Beatty

    01/08/2019 08:21 PM

    The President should do WHATEVER it takes to build the wall!

  • Tom Buttram

    01/08/2019 07:25 PM

    OK Mike, you pulled my trigger: Perhaps President Trump will read this or maybe somehow he will get this message. He needs to go back to the people who voted for him and ask them in campaign style meetings just like before mid-terms, to vote their heart and help him do his job. A reminder that he isn't taking a salary would inspire us all. Just like when the pastor goes before his congregation and raises enough money to build on to the church, (in one meeting) THIS MAN COULD DO THE SAME THING! Just appeal first to his supporters and pit them against those who want open borders and such. I would be the first to give $5,000. and that would be a small amount to what many could give. Only $79.00 per supporter and this deal is done. Now, the victory that Donald J. would score would carry right on to 2020. Let the people who believe in his leadership just have a chance to be recognized as strong supporters, The people I talk to say, "Yes, I'd give $79. or more! "GO FUND OUR WALL"

  • Thomas Lazarus

    01/08/2019 07:15 PM

    He should take your advice and go ahead and declare an emergency and use the unappropriated military funds and start the wall.

  • Les Perk

    01/08/2019 07:12 PM

    Governor: as Commander-in-Chief, the President “owns” the military. If he were to direct the SeaBees, Army Corps of Engineers and the Air Force construction battalion to build a wall, it would be done in no time flat. After all, the build airports, docks, dams, bridges and...walls! They already have the equipment and the trained personnel. Even better, if the goal is to build 300 miles of Wall, give each arm a 100 mile portion and challenge them to finish first. I guarantee they would meet and exceed the time limits. Wall would be finished before Democrats could get to the Ninth Circus.

  • Steve McDonnough

    01/08/2019 06:56 PM

    Congress or the Liberal courts will find a way to block any form of alternative funding. Hollywierd depends on an open border for their illegal drugs and illegal domestic help . They also need an open border for a steady flow of underage children to supply their sexual perversions.
    Democrat lawmakers and Judges have their hands so deep in the pocket of these folks that they cannot afford to offend them by voting for the wall.
    I am for the wall and President Trump, but to get a wall congress has to be brought its knees. Democrats and Republicans, alike.

  • Marvin (Marty) Durant Lewis, Jr

    01/08/2019 06:56 PM

    Tax all money wired from USA.

  • Mary Jo Wilson

    01/08/2019 06:50 PM

    I absolutely agree Governor. Congress is totally inept. It's time to drain the swamp!!!!

  • Dana Eyraud

    01/08/2019 06:35 PM

    Dear Mike, The crisis on our border is REAL and it adversely affects normal, middle class people like my husband and I, every day!
    I challenge everyone to come visit southern California for themselves. Go walk into ANY welfare and/or social security office and tell me... what do you see and hear? Oh, you'd have to see it to believe it! President Trump needs to visit a few of these welfare offices. Literally speaking, 95% of all people standing in line, waiting for their FREE state handouts speak NO English. 95% of the people waiting for FREE welfare and medical benefits are pregnant, illegal immigrant Mexican young women. They are poorly educated. And, they are bringing with them not one... but endless small children who were also born in Mexico. Yes, most of the people flooding into the welfare offices in California are ILLEGAL immigrants who are here for one thing only... the huge, FREE financial handouts California gives to them! While Ca. governor Gavin Newsom blushes like a new bride, offering up "sanctuary" and FREE healthcare and state aid to ANY illegal who meanders across the California border, normal middle class US citizens like me and my husband suffer and have NO health insurance. WE pay our taxes. While the illegals do not. Yet we can NOT afford health insurance, unlike the ILLEGALS who are flooding our border and being given thousands in monthly benefits FOR FREE.. And now to add insult to injury, Gov Gavin Newsom's new plan includes tax payers like us paying for MORE illegal immigrants health insurance, food stamps and state aid! The state will soon go bankrupt, if Newsom doesn't double our already sky high taxes. Since Obama Care- my husband and I can no longer afford health insurance. We're in that big grey middle class area, where we make too much money to benefit from Obama Care. But, we are NOT rich enough now to afford good private health insurance and the huge monthly insurance payments and giant deductibles that literally doubled, after Obama Care was implemented. When did the rights of non-US citizens take over MY rights as a US and California citizen? Why do I pay my taxes, but I still have NO health insurance, while every illegal immigrant in town has FREE healthcare, a FREE food stamp card and reduced priced housing compliments of tax payers like us? Go ask far left wing socialist Gov. Gavin Newsom.