Legal Justification for the National Emergency

Earlier this month, Trump both signed a border wall deal allocating $1.375 billion for border barriers along the Rio Grande Valley and signed an executive order declaring a National Emergency regarding illegal alien border crossings and the countless negative externalities that come with it. The signed deal, which averted another government shutdown, was terrible. Trump got less money than prior negotiations, and it decreased the number of illegals the federal government could hold at one time, forcing ICE to continue a ‘catch & release’ doctrine.

But the bad deal is not the controversy. Rather, the seemingly unjustifiable National Emergency is making headlines. And the subsequent 16 states who have sued in a Northern California federal court over the declaration. The suit in of itself should be thrown out because most of those states have no standing in the case, other than not liking the policy. Unless you are a border state, this in no way affects you, thus these states have no grounds to sue, nothing had wronged them, and there are no damages to be corrected.

But was the act in of itself legal? Technically, yes. Though some of Trump’s rhetoric may make it questionable, considering he said: “I didn’t need to do this.” Emergency does imply an extraordinary need.

50 U.S. Code Chapter 34 is the act relating to National Emergencies. In it, there is no definitive definition for what a national emergency is. It simply grants the president the power to declare a national emergency when he sees fit but also gives Congress the power to end a national emergency with a joint resolution if they choose to do so. The closest to a definition can be found to say “of any special or extraordinary power.” Legal language is incredibly vague so this really doesn’t mean much. A free flow of illegal aliens across the border with massive state burdens does seem to be fairly extraordinary.

10 U.S. Code § 2808 is one of over a hundred special powers the president possesses under a declaration of national emergency. It states “the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects.” The burden remains not on whether President Trump can call for a national emergency and thus divert funds away from the military for a military project because that is perfectly legal, it is whether this constitutes a ‘military project.’ Military projects are designed to enhance national defense. Illegal aliens are foreign individuals who enter (or invade) the nation and do net harm to the country. Building a barrier would go a long way in halting this, so, yes, a barrier is a military project when done to shield the border.

Trump is in good legal standings for his upcoming legal battle, but was it all necessary? Under near identical reasoning and fund sourcing, he could have built many miles of the barrier without Congressional approval. They’ve already pre-approved it.

10 U.S. Code § 284 gives the president wide-ranging powers to protect the country from drug smugglers. I don’t like all this power Congress pre-gave to the executive. It seems excessive. The act reads; “the Secretary of Defense may provide support for the counterdrug activities or activities to counter transnational organized crime of any other department or agency of the Federal Government” for the “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States” among other things. All he had to do was declare large swaths of the US/Mexican border to be drug corridors and he could have gotten his steel slates, which are easily arguably in the category of fencing.



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  1. Federal Judge Dismisses House Democrats Case Against Trump’s Border Wall

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