President Donald Trump predicted on Friday that he will likely get sued over his order declaring a national emergency, and according to at least one renowned constitutional law expert, it should be over swiftly and decisively.
“The federal courts and ultimately the Supreme Court should quickly and emphatically hold that President Trump’s attempt to fund the border wall by declaring a national emergency is illegal and unconstitutional,” wrote UC-Irvine Law Professor Erwin Chemerinsky in a piece published on Friday.
Chemerinsky based his argument on the idea that using an emergency order would violate the Constitution’s separation of powers. The power to decide where federal funds go specifically belongs to Congress, not the president. The professor pointed to a past case where the Supreme Court ruled that an emergency order violated separation of powers. In that case, President Harry Truman tried to seize steel mills so they could remain operational during a labor dispute in the middle of the Korean War. If the Supreme Court ruled that this was a problem, Chemerinsky argued, they should do the same here.
The professor did acknowledge that the National Emergencies Act of 1976 authorizes money from the Department of Defense to be used for construction projects to support the military. That appears to be Trump’s legal justification for his decision, but Chemerinsky claims that a wall along the Mexican border doesn’t fit the bill.
George Mason University Law Professor Ilya Somin also pointed the flaw in the use of the National Emergencies Act.
“No threat posed by undocumented immigration ‘requires the use of the armed forces,’ and it is hard to see why a wall is ‘necessary to support such use,'” he wrote. Somin did point out that while this should be enough to shoot down Trump’s attempt to build a wall, Trump’s attorneys “may have come up with creative legal arguments that outside observers have not foreseen.”
Of course, not everyone agrees with Chemerinsky and Somin. Attorney and Law&Crime columnist Robert Barnes pointed out that building a wall could be done by the Army Civil Engineering Corps, and that there are statutes that deal with construction authority during times of emergency.
In the event that Barnes is correct, Chemerinsky warned that Republicans may regret the emergency declaration in the long run, because it would set a precedent for Democratic presidents to follow to advance agendas for issues like climate change. Chemerinsky wouldn’t be a fan of that either.
“[W]hether we have a Democratic or Republican president, and no matter how noble the cause, we should be frightened of presidents acting unilaterally to deal with a national emergency,” he said.
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