How Congress Can Prevent President Trump from Using His National Emergency Powers to Build the Wall

by Sam Wice — Monday, Jan. 7, 2019

President Trump has threatened that if Congress does not appropriate money to build a wall along the border with Mexico, then he will build the wall through his national emergency powers. However, if Congress does not want President Trump to build the wall, he cannot build it.

The Appropriations Clause states that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The Supreme Court has interpreted the clause to mean that “the payment of money from the Treasury must be authorized by a statute.” The Supreme Court has even held that none of the president’s constitutional powers can override Congress’ power of the purse (“However large, therefore, may be the power of pardon possessed by the President, and however extended may be its application, there is this limit to it, as there is to all his powers — it cannot touch moneys in the Treasury of the United States, except expressly authorized by act of Congress.” emphasis added).

Nevertheless, existing law does potentially give President Trump the power to build a wall if he declares a national emergency. I will assume based on President Trump’s prior statements that he plans to use the national emergency authority in 10 U.S.C. 2808, which authorizes “[i]n the event of . . . the declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects . . . Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction . . .”

For the purposes of this article, I will not delve into whether 10 U.S.C. 2808 actually gives President Trump the authority to build the wall because even if such exercise of emergency powers were to be upheld by a court, Congress can prevent President Trump from using the authority well before a court case could be decided.

Specifically, the the National Emergencies Act provides that Congress can terminate the president’s national emergency powers simply by passing a joint resolution. Further, the Act gives a joint resolution expedited, special privileges.

If President Trump were to declare a national emergency, the Democratic House of Representative would likely pass a joint resolution to terminate the national emergency. After the House passes its joint resolution, the Republican Senate would then have roughly 18 dates before it must vote on the joint resolution.

However, whether Senate Democrats could convince four Senate Republicans to support the joint resolution (and whether, as Professor Bruhl pointed out in the comments, Congress can override a veto) is largely an academic discussion as the House of Representatives has enough leverage to ensure that appropriations law prevents President Trump from building the wall.

In addition to the power to spend money, Congress has the power to prevent money from being spent. For instance, even though marijuana is illegal under federal law, appropriations laws have prohibited the Department of Justice from prosecuting medical marijuana, where it is legal under state law. In effect, appropriations law has made medical marijuana legal.

Likewise, House Democrats can ensure that the appropriations law that ends the shutdown completely encapsulates Congress and President Trump’s agreement on whether to fund a wall by (i) specifying that no money–or no additional money–from the law can be used to build a wall along the border with Mexico and (ii) amending the existing military construction appropriations (which is not shutdown) to say that no money from that appropriations or any previous appropriations can be used to build a wall along the border with Mexico, including under 10 U.S.C. 2808 authority.

While President Trump does have extensive national emergency powers, they are not absolute. As such, President Trump cannot use his emergency powers to build a wall along the border with Mexico without Congress’ consent.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

This entry was tagged , .

About Sam Wice

Sam Wice is a former analyst at the Congressional Budget Office and a former Council Member of the American Bar Association’s Section of Administrative Law and Regulatory Practice. He can be reached at sam.wice[at]outlook.com.

6 thoughts on “How Congress Can Prevent President Trump from Using His National Emergency Powers to Build the Wall

  1. richard pierce

    The provision of the National Emergencies Act that purports to authorize Congress to terminate the president’s national emergency power by joint resolution is unlikely to be upheld because it violates the presentment clause as that clause was interpreted in INS v. Chadha.

    Reply
  2. Sam Wice Post author

    Professor Pierce, good point on the constitutionality. An important point if the power is declared unconstitutional is that there is a good argument that Congress never intended to give the president unchecked powers and a court would likely find the provision unseverable and thus invalidate the president’s use of emergency powers under the National Emergencies Act. See e.g., Clinton v. City of New York, 524 U.S. 417 (1998); New Haven v. U.S., 809 F.2d 900 (D.C. Cir. 1987).

    Reply
  3. Aaron Bruhl

    The provision allowing termination of an emergency (50 USC s. 1622) calls for a “joint resolution,” which ordinarily means presentment to the president. After Chadha, Congress amended the statute to change “concurrent resolution” (which does not require presentment) to joint resolution. Pub. L. 99–93, title VIII, s.  801, 99 Stat. 448. So I don’t believe there is a Chadha problem. However, this means the president can veto the termination resolution.

    Reply
    1. Sam Wice Post author

      Professor Bruhl, thanks for your comments as they provide some additional insight. This discussion is not what I envisioned when I said a termination under the National Emergencies Act was an academic discussion as I think Congress would write the appropriations law that ends the shutdown to explicitly restrict spending money on a wall. I at least take solace that my implication that the joint resolution would some chance of success is in the friendly confines of this blog and not like other legal experts who made the same implication in the New York Times and Washington Post. 🙂

      Reply
  4. El roam

    Interesting post, just worth to note, that if already relying upon Knote V. US then we could draw another potential legal interpretation :

    In that case, the court held clearly, that indeed, I quote :

    Moneys once in the treasury can only be withdrawn by an appropriation by law.However large, therefore, may be the power of pardon possessed by the President, and however extended may be its application, there is this limit to it, as there is to all his powers,—it cannot touch moneys in the treasury of the United States, except expressly authorized by act of Congress. The Constitution places this restriction upon the pardoning power.

    End of quotation :

    Yet, there is an exception to it ( a sort of ) and it is, when the money or property, is not yet forfeited or total loss, but, is yet in a sort of transitional state, not vested or held by third party having legal possession right on it, here I quote :

    But the Attorney-General held, and so advised the Secretary, that, if the money had only gone into the hands of some officer of the government, and the right of third parties had not attached, it might be refunded.

    And :

    and as in that case the forfeiture of his property was one of those consequences, it restored the property to him, unless the rights of other parties had vested, and the power of restoration was thus gone.

    End of quotation :

    So, here we need first, to define, what is an appropriation, what is the legal scope of it. For, if the money is already in use,issued already, floating, it is one may claim, not relevant for the action of appropriation,but, only the very initial constituting act is relevant ( like held in that case brought above ). So, one definition may be so :

    An appropriation is a legislative act authorizing the expenditure of a designated amount of public funds for a specific purpose.( legal dictionary see link)

    And we may conclude, that certain legislation or designation is needed for constituting it. But, if already in use, or circulated or has been issued already, then, it is not appropriation. In accordance :

    If the respectable author of the post, suggests that Trump can start to build the wall with existing funding ( military construction it seems ) one may claim, that it is no longer or outside of the scope of appropriation by Congress.

    Here to the legal dictionary :

    https://definitions.uslegal.com/a/appropriation/

    Thanks

    Reply
  5. Sam Wice Post author

    I interpret the Supreme Court in Knote to specify that if an administrative process has not yet sent the money to the Treasury then the money is not subject to appropriations law. But as the language specifies “refunded” and “restored” the exception only applies to the collection of money and not the spending of it.

    You are correct that any already spent money can likely not be restored. However, until the money is actually spent, it is still in the Treasury. I doubt that President Trump can build the wall before the shutdown and ends and Congress passes its restrictions upon spending money on the wall.

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *