The nonpartisan think tank for Congress reports there are 136 laws that give President Trump emergency powers, some of which he is planning to invoke to fund barriers to protect critical segments of the southern border.
The report by the Congressional Research Service also noted that the legal standing required for individual Congress members or houses of Congress to object in court is “limited.”
The analysis, reports the Washington Examiner’s Paul Bedard, “confirms that the president appears to have the green light from Capitol Hill.”
“Despite promises from Democratic leaders to sue to stop Trump, the nonpartisan Congressional Research Service has determined that the move may be legal and effective,” he wrote. “In its most recent report on the border wall, CRS said that Congress actually wrote the legal path for Trump to follow to tap into Pentagon construction money to build the wall.”
The president said Thursday he would declare a national emergency to allocate funds to address the crisis of illegal immigrants, drugs and criminals crossing the southern border.
The CRS found there would be several “novel legal issues,” but the president could avail himself of broad authorities by declaring a national emergency under the National Emergencies Act (NEA). [50 U.S.C. §§1601-1651] “Such a declaration could enable the president to invoke certain emergency military construction authorities established by the Military Construction Codification Act (MCCA).” [10 U.S.C. §§ 2801-2885]
“Upon declaring a national emergency pursuant to the NEA, the president may invoke the emergency military construction authority set forth in 10 U.S.C. § 2808 (Section 2808). … Section 2808 provides that upon the president’s declaration of a national emergency ‘that requires use of the armed forces,’ the Secretary of Defense may ‘without regard to any other provision of law … undertake military construction projects … not otherwise authorized by law that are necessary to support such use of the armed forces.'”
Troops already have been dispatched to the border to enhance security.
That move, the analysis pointed out, “has not been successfully challenged.”
Other laws also would assist Trump.
In passing the National Emergency Act, Congress ensured that any president has clear statutory authority to declare an emergency.
Under the NEA, which was adopted after Congress discovered and canceled hundreds of declared emergencies in the 1970s, the president needs to specify which statutory emergency authorities he’s using, publish the proclamation, maintain records and provide an accounting of expenditures.
Originally, the law allowed Congress to end an emergency through a concurrent resolution, which does not require the president’s signature. But Congress inserted the requirement for a presidential signature.
“While the NEA directs each house of Congress to meet every six months to consider whether to terminate a national emergency by joint resolution, Congress has never met to consider such a vote.”
It is Section 2808 of the federal law that allows the president to declare a national emergency then authorize military construction projects.
“Congress has appropriated a significant amount of money for various forms of military construction for the 2019 fiscal year (and additional funds may still be available from prior fiscal years) that may be available for military construction activities,” the report said.
The report said using those funds for a border wall has not been challenged in court. Further, there would be a question whether a wall is in support of the military, but a court may decline to review whether building a wall is within the purview of the military “on the grounds that they involve non-justiciable political questions.”
“Courts have traditionally afforded significant deference to executive claims of military necessity, which may stand as a substantial obstacle to legal challenges to any factual findings,” it said.
“Several other statutes may provide the DOD with some authority to construct barriers along the border,” the report continued. “The president may cite these authorities either individually or in combination with Section 2808 to support such construction.”
The report noted there is an emergency military construction statute that could allow the president to construct barriers along the border without even declaring a national emergency.
One law allows the Defense Department to assist law enforcement by building “roads and fences” to block drug smuggling.