Mark Tushnet is the William Nelson Cromwell professor of law at Harvard Law School.
If Congress doesn’t come up with an appropriations bill funding his beloved wall, can President Trump declare a national emergency and build the wall anyway?
The answer depends on law and politics.
The Constitution is the starting point. It says that the government — even the president — can’t spend money unless Congress passes a law authorizing the spending. Without a bill funding the wall, where can the president find the money?
Several places, it turns out. The National Emergencies Act says that a presidential declaration of an emergency triggers a bunch of other provisions. One provision allows a president to spend already appropriated money for “military construction projects.” There’s a pot of about $10 billion available under that provision. Another allows him to divert the emergency money already appropriated for disaster relief.
Suppose Trump declares an emergency and says he’ll use those provisions to come up with the money for the wall. What next?
Politics comes next. The House and the Senate can use a fast-track procedure to pass a joint resolution effectively taking away the president’s power to use those funds — leaving him without any appropriation to pay for the wall.
Joint resolutions are statutes, though, which means that Trump can veto this one — and then Congress gets a chance to override the veto, by a two-thirds vote in both chambers. Reports suggest that Senate Majority Leader Mitch McConnell (R-Ky.) has been advising the president that there’s a decent chance that he’d lose such a veto fight.
Enter the courts. The National Emergencies Act doesn’t define what “emergency” means. The term has to have some limits, though. How can something be an emergency in late February when you saw it coming two months — or years — earlier? (Maybe an asteroid crashing into the Earth — law professors make our living thinking about hypotheticals like that.)
More important, saying that something’s an emergency simply because the president hasn’t been able to persuade Congress to appropriate money seems to stretch the word pretty far — and to give the president a powerful tool to do an end run around a Congress he regards as obstructing what he thinks, but it doesn’t, are national priorities.
As the Supreme Court’s troubling decision in the travel ban case shows, courts are likely to cut the president a lot of slack in connection with national security. Still, those challenging an emergency declaration for the wall probably can find a federal judge somewhere skeptical about the claim that there really is an emergency. If they do, chances are the case will be tied up well into 2020, when the president can ask the voters whether they want to build a wall.
Another path into court involves the military-construction and disaster-relief statutes. The first one limits the use of already appropriated money to military construction projects. When you track the statute’s definitions down, their most natural reading is that the money can be used to build barracks, landing strips and the like. The underlying image is of a national emergency that requires deploying troops to new locations, where they will need supporting facilities.
It would take some fancy footwork to describe the wall as a military construction project, and the chances are pretty high that judges won’t be persuaded. The disaster-relief statute has some of the same problems. Here the image is of a natural disaster even worse than California wildfires or Texas flooding, and that needs immediate attention. Again, the wall doesn’t seem to fit. But the disaster-relief statute’s definitions are looser than the military-construction statute’s, so maybe judges would hold their noses and let the president use that money to build the wall.
Politics reenters the picture here. The disaster-relief money is already set to go to California, Texas and elsewhere. Members of Congress from those states aren’t going to like it when they see money flowing away that was supposed to be used to help their constituents. Using disaster-relief money might increase the chance that Congress would override a presidential veto of a joint resolution.
There’s one last wrinkle. The Constitution gives the president “the executive Power.” Defenders of a really strong presidency might argue that this power allows a president to override congressional statutes limiting his power to use already appropriated money. Supreme Court Justice Robert Jackson wrote that in such cases the president’s power was “at its lowest ebb.” But “lowest ebb” doesn’t mean “nonexistent.”
A law professor can come up with wild hypothetical scenarios in which the president should be able to ignore limits Congress puts on his power to spend money and protect the nation — some version of the zombie apocalypse, perhaps. Those scenarios are so far from what we face that no court would let the president get away with this ultimate move.
In Shakespeare’s “Henry IV,” the self-important Glendower says, “I can call spirits from the vasty deep.” Hotspur replies, “But will they come when you do call for them?” President Trump may learn the lesson Hotspur taught Glendower.