As the government shutdown continues, Donald Trump has renewed his threats to declare a national emergency and exercise executive power to build a wall on the southern border of the United States. Can he do this? And what are the institutional limits?
Constitutional design presumes that the executive is best suited to manage sudden crises. When the constitution was written, only the President would have the ability to react quickly, as Congress wasn’t guaranteed to be in session and transportation was more difficult. Checks and balances, however, are supposed to ensure that the President can’t go it alone for too long without consultation and consideration.
What can we learn from history?
Emergency power has a long and checkered constitutional
history. The constitution itself doesn’t mention the word, and this is
intentional. The only constitutional right that can be suspended by the
constitution’s own terms is access to habeas corpus, and as Eric Freeman has
idea of protecting core freedoms against governmental intrusion is both deeply
rooted in constitutional history and extends beyond habeas. Nonetheless,
the system and the courts, most notably in the Civil War era but afterward as
well, allowed room for governmental (and particularly executive) actions under
emergency conditions that wouldn’t necessarily pass muster otherwise.
It’s worth keeping two legal developments in mind. One was Justice Jackson’s famous concurring opinion in the Steel Seizure Cases during the Korean War in 1952. President Truman attempted to use the war as justification for his intervention in a labor dispute, but the Supreme Court thwarted him. In agreeing with this outcome, Justice Jackson explained that the President’s authority to act unilaterally was at its highest when exercising power directly provided by Congress. If Congress had passed legislation denying authority to the President or circumscribing presidential power, the President was limited to powers expressly granted in Article II. If Congress was silent, then the President’s powers were more ambiguous. Nonetheless, in no event could presidential power exceed the basic constitutional thresholds established by the interplay between Articles I and II.
The second development was Congress’s decision to create a legislative framework for executive use of emergency power. Prior to this, Presidents were largely responsible for determining both what an emergency was and how far their authority could go – unless checked by Congress or the courts. By 1973, however, Congress had become increasingly concerned about executive authority based on emergencies declared by resolution in 1950, 1970, and 1971. Congress passed the National Emergency Act in 1976, which allows presidential declaration of emergencies subject to limits. Now, this vehicle is the only means of declaring a national emergency. Congress can rescind a declaration with a joint resolution, and the President “must indicate . . . the powers and authorities being activated to respond to the exigency at hand.” Furthermore, the President must comply with reporting provisions, and emergencies automatically expire after a year unless extended.
Since the passage of the National Emergency Act, Presidents have used it frequently. In 1979 Jimmy Carter declared an emergency that blocked Iranian government property from entering the United States that still remains in effect. George W. Bush and Barack Obama together combined for 25 declarations, many but not all of which related to the 2001 terrorist attacks. The Brennan Center’s Elizabeth Goitein notes that right now, thirty states of emergency are in effect, most of which have been routinely renewed by Congress with little consideration. Each declared state of emergency opens access to an expansive arsenal of statutory tools that allow for the exercise of extraordinary executive authority.
So what about that wall?
Thus, it would seem that Congress has authorized presidential declarations of emergencies, and has done little to define or delimit what constitutes an emergency. But what happens when we tie this analysis to the use of emergency power to build a wall?
Two sticking points come up. First, as Bruce Ackerman has noted, using emergency power to mobilize the military to build a wall would be problematic. US law and custom over the years have allowed military mobilization to address a variety of national security threats, at times under questionable theories of authorization. However, the use of the military for basic policing is another matter entirely. An entire federal agency and administrative apparatus – the Department of Homeland Security – is already dedicated to managing and enforcing border security. If it’s questionable for the military to take over policing functions when no federal agency has this responsibility, it’s clearly problematic for it to happen when Congress has by design placed that responsibility in the hands of the civil government.
Trump has attempted to prepare the ground against this objection by claiming that thousands of terrorists are crossing the southern border, but this claim is patently false.
And then there’s the question of the land itself that would have to be seized. The Constitution guarantees that private property cannot be taken without just compensation., Longstanding common law principle carves out an exception for enemy property, as Steve Vladek has explained. He notes, however, that history makes clear that this doctrine applies only to real emergencies and against enemies. Vladek argues that property can be appropriated forcibly without compensation only under conditions of extreme military necessity.
Finally, the debate over takings focuses on compensation for non-citizens, and on takings of extraterritorial property. The proposed wall would involve condemning a substantial amount of property owned by U.S. citizens. Surely extraordinary justifications would have to be provided to allow the military expropriation of property outside of the ordinary legal process of land condemnation and valuation. This could provide creative legal scholars with an opportunity to revive the long-forgotten Third Amendment, which protects Americans against quartering!
Institutional responsibility is critical!
At bottom, though, as with so many other things, the serious question is political, not solely legal or constitutional. Practical legitimacy in the United States requires the proper operation and functioning of all three branches of government. If Trump attempts to declare an emergency to build a wall, Congress should do its job, and the courts should do theirs.
Congress’s job is to demand a full account of the statutory basis authorizing every step of the proposed wall-building and detailing the sources of funding. The Trump Administration will be hard pressed to find statutory authority to use the military in this fashion, even under a broad conception of emergency power. Yet, without this accounting of both authority and funding, the exercise of emergency power is inappropriate and unauthorized, and Congress should hold the administration accountable.
The courts should likewise insist on a straightforward application of the Steel Seizure framework, and limit the exercise of executive power absent congressional authorization. They should also enforce the doctrine that emergency powers do not provide a blank check to cash against structural and personal constitutional guarantees.
Should an emergency be declared, we will all be watching to see if the institutional bulwarks against constitutional mischief will stand.