Why the President Can Not Rely on His Own Powers to Fund the Border Wall: A Story of Separation of Powers

ANABEL BLANCO—On Saturday, December 22, the U.S. government entered a partial shutdown after President Trump and Congress failed to reach an agreement to pass a spending bill—a proposed law that authorizes the expenditure of government funds. President Trump demanded that the bill include 5.6 billion dollars in border wall funding, something that democrats steadfastly oppose. With the government shutdown having lasted around a month at the time of writing this post, the White House is still considering other options through which to fund construction of the border wall, one of President Trump’s key campaign promises. One of the most controversial of these options was announced by the President on Friday, January 4, when he stated that he was considering declaring a national emergency to build the border wall.

Embed from Getty Images

President Trump’s January 4 announcement raises two initial questions: first, how exactly would declaring a national emergency allow him to fulfill his campaign promise of building a border wall, and, second, does he actually have the constitutional power, as the head of the executive branch, to declare such an emergency? The answer to the first question is not entirely clear, as neither the President’s initial announcement nor his subsequent comments on the issue have specified the procedure that would follow if a national emergency is in fact announced. However, the general thought is that the declaration of a national emergency would permit the President to fund construction of the border wall principally by allowing him to reallocate funds from other federal government programs. Secondarily, the President might also intend that the declaration of a national emergency would allow him to employ the military in order to build the wall.

Now, does President Trump actually have the constitutional power to pursue the foregoing course of action? A president seeking to act pursuant to a declaration of a national emergency might look at two sources of authority to do so. The first one of these is the power that he has under the U.S. Constitution as the head of the executive branch, while the second is the power he has been granted by Congress pursuant to certain statutory authorities, specifically the National Emergencies Act of 1976. Because most sources reporting on the subject have focused on President Trump’s likelihood of success pursuant to the latter, presumably more feasible, option, the remainder of this blog post will discuss the constitutionality of the idea that President Trump could proceed pursuant to his own constitutional powers.

The Constitution of the United States makes no express mention of presidential emergency powers. As such, presidents wishing to exercise such powers can only claim that they are either implied or inherent (there is a legal distinction between these two terms that it is unnecessary to detail here). Presidential claims of inherent powers are about as old as they are controversial. Perhaps the most often cited examples of presidential use of inherent powers are some of the extraordinary actions taken by President Lincoln during the Civil War, such as his unilateral suspension of the writ of habeas corpus.

At present, commentators dismiss the possibility that President Trump could succeed in declaring a state of national emergency based on a claim of inherent presidential power by citing the landmark case Youngstown Sheet & Tube Co. v. Sawyer. In Youngstown, the U.S. Supreme Court rejected President Truman’s claim of inherent authority to seize and operate the nation’s steel mills to avert the expected effects of a national steelworker strike even though the purpose of such a seizure would have been to protect national security. The decision is often cited for the proposition, developed in Justice Jackson’s concurring opinion, that the president’s authority is at its lowest when he “takes measures incompatible with the expressed or implied will of Congress . . . for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”

The presently unfolding situation between President Trump and Congress arguably fits squarely within the category of circumstances described by Justice Jackson in which presidential power is at its weakest. First, the present Congress has explicitly rejected President Trump’s petition for funds to build the border wall. As such, any action President Trump takes in pursuit of such funds will be in opposition to the expressed will of Congress and must be grounded solely upon his own constitutional powers. Second, the Constitution makes no express grant of authority for what President Trump is seeking to do: it does not explicitly provide for presidential emergency powers and much less does it provide for presidential power to reallocate resources upon a unilateral declaration of emergency. Finally, the Constitution in fact tasks Congress (specifically the House of Representatives) with the “power of the purse,” or the ability to tax and spend public money for the national government, so that President Trump would arguably be encroaching upon the legislative branch’s power if he were to move forward.

Admittedly, even after the Youngstown decision U.S. presidents have continued to rely on claims of inherent presidential authority as legal justification for what would otherwise be their arguably illegitimate exercise of certain powers. For example, in the wake of the September 11 attacks, the Bush administration maintained that the president has inherent constitutional power to authorize warrantless wiretaps to protect national security in a time of war. However, it is questionable whether such arguments would have survived judicial scrutiny. In fact, the Bush-era surveillance program (which continued during the Obama administration) generated various lawsuits, with one federal district judge ruling that it was illegal, although the decision was later overturned on appeal on a finding that the federal government had not waived its sovereign immunity from suit.

Given the extensive coverage that President Trump’s potential declaration of a national emergency has engendered, it is easy to predict that any such declaration would end up before the courts. Whether or not reviewing courts would decide to explicitly apply the Youngstown framework to the present situation may be up for debate. That is, the case might be decided on a procedural ground or the question might not come up at all if the President pursues another justification for his actions, such as the previously mentioned National Emergencies Act of 1976. However, it remains the case that if President Trump were to rely solely on inherent executive authority to declare a national emergency to build the border wall, not only would he be acting in express disregard of Congress’s wishes, but he would also be exercising a power that is not granted to him by the Constitution. Unchecked, such an action would signify an alarming extension of executive authority.