President Donald Trump is legally justified in using a declaration of a emergency to use already appropriated federal funds to build a border wall.
A review of existing federal laws makes clear that President Donald Trump has clear statutory authority to build a border wall pursuant to a declaration of a national emergency. Arguments to the contrary either mischaracterize or completely ignore existing federal emergency declarations and appropriations laws that delegate to the president temporary and limited authority to reprogram already appropriated funding toward the creation of a border wall between the United States and Mexico.
To analyze the legal basis for Trump’s declaration of a national emergency and subsequent transfer of existing appropriations to respond to the declared emergency, we must begin and end with the actual text of underlying federal laws governing presidential declarations and appropriations of federal funding. The most important text regarding the latter is Section 9 of Article 1 of the U. S. Constitution: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law[.]”
This law is what grants Congress the so-called “power of the purse” and effectively makes Congress the most powerful branch of the federal government. Not one dime may be spent by the federal government in the absence of an act of Congress. As a result, no mere declaration of emergency by the president is sufficient to allow the expenditure of funding that Congress has not already appropriated.
Much news coverage of Trump’s national emergency declaration has suggested that he is unilaterally spending money that has not been appropriated to fund construction of a wall (or fence, or security barrier, or whatever you want to call it) on the U. S. southern border, but that is simply not the case. In fact, the formal declaration of a national emergency on the U. S.-Mexico border cites two specific federal statutes that provide him the legal basis to use emergency funds to secure the border: one authorizing the president to declare national emergencies (50 U. S. C 1601 et. seq.) and the other authorizing the president to reprogram existing federal appropriations in response to an emergency declaration (10 U. S. C. 2808).
Between 2001 and 2014, according to a January 2019 analysis by the Congressional Research Service, Presidents George W. Bush and Barack Obama used those two laws in tandem 18 separate times to reprogram existing appropriations to address national emergencies, so there’s nothing unusual or unprecedented in Trump using the same authorities to respond to national security threats.
But what do those two laws say about the use of presidential declarations to spend money? What kind of conditions do they require (if any), and what limitations do they place on the president? After all, as noted above, the only powers that the president can lawfully use in this instance must first be authorized by Congress.
The first law, known as the National Emergencies Act of 1976, explicitly authorizes the president to declare a national emergency. Here is the key text:
As the text demonstrates, the president clearly has the authority to declare a national emergency. But it is important to note what is missing from the text: any conditions, requirements, or examples of what constitutes a “national emergency.” Congress put no constraints on whether a president may declare an emergency, or what conditions must be met in order for a particular event or crisis to be considered an “emergency.” Instead, the law leaves that decision solely up to the president.
Rather than constraining the president’s authority to declare an emergency, or setting conditions on what may be considered an emergency, Congress opted to limit the authority of the president to take certain actions in the event of an emergency. In other words, Congress allowed the president to walk into the room at his sole discretion, then limited what he was allowed to do in there once he entered.
The president’s authority to declare a national emergency established by statute, let us now turn to what authorities the president is granted once a national emergency is declared. Within the context of the emergency border wall debate, that law is 10 U. S. C. 2808, which delegates to the president, in the event of a national emergency that requires the U. S. military, the authority to reprogram existing appropriations for military construction projects in order to address the ongoing emergency. Here is the text of that particular statute:
There are several important phrases in this particular statute, namely “requires the use of the armed forces,” “military construction projects,” and “necessary to support such use of the armed forces.”
Who determines whether the use of the armed forces is required during a particular national emergency? The simple answer is that such discretion belongs to the president of the United States in the discharge of his duties as commander-in-chief. As Article II of the U. S. Constitution states, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States[.
