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Could Anyone Challenge Emergency Declaration to Build Wall?
While Possibly Unconstitutional, Perhaps No Court Could Rule On It
By: Public Interest Law Professor John Banzhaf
Arguments that any such action by Trump would be unconstitutional apparently hinge on the constitutional requirement that only Congress can appropriate funds.
But, if the President does declare a national emergency, the law apparently permits him to take funds in the military budget which have already been appropriated for construction to be used for projects at his direction.
Another argument that Trump can't act unilaterally to build a wall is based on the famous Youngstown Steel Seizure case. There, when President Harry Truman used a declaration of emergency to seize steel plants, the Supreme Court rebuffed him. But there are two problems with using that as precedent to stop Trump's threat to use an emergency declaration to build a wall.
One is the that Justice Hugo Black's majority decision placing restrictions on the president's power has to be read and modified by five separate concurring opinions of the other justices.
Read all together, the limits on the president's powers under a declaration of emergency are not clearly spelled out. And there may well be a big difference between taking public property at a time when the nation is in a state of war is order to achieve war-related objectives, and simply using government money at a time when there is no war, and no traditional war enemy.
Another bigger problem is one of legal standing. Generally, to bring a law suit, the plaintiff must be able to show that he or it has suffered an "injury in fact."
In the steel case the steel companies whose property had been seized clearly met that test. Indeed, the steel company attorneys were at the home of a judge seeking a restraining order within 30 minutes of Truman's announcement that he was seizing their plants. But no such obvious plaintiffs appear here.
A House Appropriations Committee spokesperson called Trump's threat "legally dubious," saying it would "invite a legal challenge from Congress." But courts have often held that individual members of Congress, or even congressional Committees, may lack the particularized injury necessary to obtain legal standing.
However, in the recent Azar case, federal judge Rosemary M. Collyer held that the entire House of Representatives did have standing to pursue constitutional claims regarding President Barack Obama's implementation of Obamacare, but did not have standing to challenge "the implementation of a statute, not adherence to any specific constitutional requirement."
In summary, suggest Banzhaf, who both teaches and litigates issues of standing, the law related to standing by legislators and legislative bodies is far from clear, and whether beginning to construct a wall following a declaration of emergency could be challenged in court in this manner is unclear, and could well depend exactly how the issues are framed, and how a judge interprets the scarce prior precedents, says Banzhaf.
This issue is vital, argues Banzhaf, since it appears that no other entity would have standing to challenge a spending decision, although a person whose land is seized - "under the military version" of eminent domain, as Trump put it - may have standing to raise at least certain (but not necessarily all) legal issues related to the President's order.
As CNN reported, its legal analyst Jeffrey Toobin said that "if Trump tries it, 'it is quite possible that the president legally could get away with it' given the fact that it is unclear who would have the standing to sue in that case."
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418