As the media begins to go absolutely nuts over the idea that the President might declare an emergency and re-allocate military funds to build the wall, it would be useful to review all the sorts of authorities any President has in time of emergency. The radical statists who comprise the left are in favor of such power, but at the moment, such power, in the hands of President Trump, is contrary to their political interests. Their whole shtick is “resist.” Their rabid, anti-America base will oppose him simply because he’s not them. The NeverTrump republicans, including opportunists like Mitt Romney, will undoubtedly oppose him. Before the shrill voices grow louder, confounding our ability to understand the issue, let’s look at the law to see if we can easily surmise whether such an action by the President is authorized by the constitution. After all, the constitution must be our yardstick. With that in mind, let us examine why it is that President Trump is fully within the bounds of his constitutional authority to declare an emergency and build the wall, using the military to do so if need be.
First, let’s see what the President has to say on the matter, this past Friday in the Rose Garden:
One of the things always available to any president is the powers of Commander in Chief. Article II of the United States Constitution makes one thing expressly explicit in Section II:
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”(Emphasis mine.)
The bolded portion here is easily understood. He’s in charge of the military. He decides how and when federal troops and state militia[national guard] will be deployed. He, solely, is vested with the authority to determine their mission, and their day-to-day activities in pursuit of that mission. Not Congress. Not the courts. Not the Secretary of Defense(who works for him directly.) Nobody else trumps the President in the deployment of the armed forces. Nobody can countermand him in his role as Commander in Chief. Not John Roberts. Not Nancy Pelosi. Not Mitch McConnell. Got it? Seriously, if you have any doubt whatever about this, I have doubts about your reading comprehension.
The President can, within his authority, bring all of the soldiers, sailors, airmen, and marines, be they active or reserve components, or National Guard components, and assign them the mission of building the wall. He can, within the scope of his authority, redirect EVERY MEMBER OF THE UNITED STATES ARMED FORCES, up to and including the Joint Chiefs of Staff, and also all DoD civilians, shovels and pick-axes in hand, to begin building the wall. He has this authority.
Some will point out that this is all well and good – that the President has the manpower available – but he does not have the money for the materials. Wrong. Since the President determines the disposition of the Armed Forces, he also has some significant latitude in determining a number of things. He can, at any moment, instruct the SecDef to cancel a contract. Imagine all the whining Congress critters who have significant defense contracts in their districts who would lose their collective minds when he redirected funds in this manner. It’s within his authority. Also, he can call all active forces to support the Army Corps of Engineers, who he can command to direct the construction. There are all sorts of caches of “emergency funds” built into various budget areas that can be put to work in this way. Congress is powerless to stop it because they’ve already appropriated and authorized the funds.
The President of the United States has broad powers already delegated to him by Congress to meet various emergencies. For instance, while I believe the War Powers Act is probably unconstitutional if any President wanted to challenge its limits, there is nothing to prohibit a president from feigning compliance. A president could very easily declare a national security emergency arising from our porous Southern border, and deploy our forces in support of that mission. At the very least, he’d have 60 days to make an initial report to Congress, and a further 30 days to withdraw forces(which means the limit is effectively 90 days, where US border operations would be concerned.) He need only be able to show that there is an attack of any sort on the United States. Did you happen to notice those Soros-funded idiots throwing rocks and Molotov cocktails and other weapons at our border agents recently? That’s an attack against the United States, folks.
Readers would do well to acquaint themselves with Title 50 of the United States code. It would also be useful to examine the Insurrection Act of 1807, as amended. This, by itself, may provide all the justification Trump would need under existing law. Congress would be powerless to impede him. Under the auspices of the National Emergencies Act, the President can do all manner of thing, but all Congress may do is pass a joint resolution of both houses of Congress to stop it. (And this may be open to Presidential challenge in courts.)
As readers are well aware, the United States of America has been at war since 2001. Due to this fact, the President’s general set of authorities are somewhat broader than they might otherwise be during peacetime. Folks, President Trump has so much power that he hasn’t even begun to exercise that he could build a wall from San Diego to Manhattan before the courts could untangle it all. The simple point is that the President has this authority. You may not like it. Hell, generally speaking, I don’t like it because it has been abused constantly to the detriment of the American people. Wilson and Roosevelt were monsters. They did so many things under “emergency doctrine” that still carry the weight and force of law that I shudder to consider it. If President Trump finally acts to build a wall along our Southern border, it will be one of the rare legitimate uses of such powers in my lifetime.
Democrats and NeverTrump RINOs might hate it, but if President Trump pursues this course, he’s certainly got every manner of precedent to support him, and there is every conceivable loophole in existing law to support it. If he really wants to, nothing can stop President Trump from building that wall, except perhaps impeachment and removal, and while the Democrats may be able to carry out the first, there’s next to zero chance they can remove him in the Senate. The American people would revolt. Bank on it.
Yes, the left will immediately challenge, but this will elevate directly up the courts to SCOTUS if some leftist judge does such a thing. The Armed Forces must listen to the CinC or face serious consequences. Essentially, it’s mutiny, but the Armed Forces will follow orders. Bank on it. Much of what Trump can do once he declares an emergency is outside of the courts’ authorities, so that it won’t matter. Remember, Congress sets the courts’ jurisdiction. The problem for Congress is that they can’t go off giving the courts new jurisdiction that would substantially change the president’s exercise of emergency authority once that authority is in force.
As an example, imagine that POTUS says “We’re under attack, and under the auspices of the War Powers Act, I’m deploying X number of units to our Southern border to secure our nation and eliminate all threats.” Congress could jointly enact a resolution by 2/3 vote of both houses to amend the War Powers Act, but it’s too late, you see: Once the President has begun to operate within those powers, Congress can’t recall them until after the current action is complete. This is true of any emergency POTUS might declare. The covering statute might be changed while its being exercised, but limits imposed in the amended version would have no effect in law until the current action under its original version had run its course.
Congress, having given the President certain authorities under law, cannot reclaim them while in exercise, unless a mechanism for that is built into the law. Most such emergency statutes have no such mechanism. There are hundreds of them, and you can be sure that President Trump’s legal counsel are well aware of all the ones they can bend like spaghetti. Thanks for the comment!
It’s not really up to SCOTUS. It’s just that they can have the last word according to the precedents Congress has accepted to date. SCOTUS doesn’t have any authority, really, except to say what the law is. The President can change three words in his declaration and go again. In the mean time, he can continue operations. The point is that if the supreme court was doing its job, and I’d say it hasn’t in some time, it would smack down some of these district court judges for their idiotic rulings, and stays that have force of law beyond the boundaries of their districts, which is something that’s only happened recently. I don’t know when it was decided that was okay.
Oh, sorry, I didn’t answer the last part of your question: If the supreme court doesn’t act right away, it’s essentially like agreeing with the lower court. I can’t imagine that in this case, given the subject matter. The President, under our constitution, pretty much runs things in the vein of national security. Frankly, there’s the other thing, which is there’s nothing which says the President must obey the court, except perhaps custom and precedent. The President could say to the court: “Well, go ahead and send your US Marshals to enforce it.” (They don’t have any.)
“when called into the actual Service of the United States” = declaration of war?
Lajaw, I’m not sure I understand your question.
The Constitution states in Article II Section 2 of the U.S. Constitution, the Commander in Chief clause, states that “[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”
It sounds like he is only Commander in Chief of the military when there is a declaration of war…………….
I was never in a declared war. I was nevertheless in “the actual Service of the United States.” I wasn’t certain if this had been your meaning, but no, a declaration of war is not required. A president is the commander in chief of the armed forces from the moment of inauguration until the moment of the successor’s inauguration. Thanks!