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!