A full evaluation of the legality of President Donald Trump’s decision to declare a national emergency, and to order the building of a wall between the U.S. and Mexico, is best deferred until the appearance of a supporting memorandum from the Justice Department.
But even now, four points are clear – and they are at risk of getting lost in the national discussion.
1. It is wrong to say that if Trump can declare a national emergency, he can necessarily order the Defense secretary to build a wall.
Under the National Emergencies Act, declaration of an emergency does not give the president a blank check. It merely “unlocks” specific legal authorities. After a declaration of an emergency, the question is therefore straightforward: What specific legal authority allows Trump to order the Defense Department to build a wall? (We’ll get to that.)
2. Courts are not likely to rule that Trump’s declaration of a national emergency is itself unlawful, even if the facts do not support the declaration, and even if his own statements and actions undermine it.
Some critics are pointing to Trump’s incautious statement, “I didn’t have to do this, but I’d rather do it much faster.” They are also pointing to evidence strongly suggesting that with respect to the border between the United States and Mexico, there is no emergency at all.
Perhaps they are right. But the governing law does not define “emergency.” It does not specify the criteria that the president must meet, or that courts might invoke, to resolve the question whether an emergency has been legitimately declared.
We cannot rule out the possibility that judges could be convinced that Trump’s declaration of a national emergency lacks an adequate factual basis. But in view of the tradition of judicial deference to presidential decisions in the domain of national security, that’s not very likely.
3. It is wrong to say that if Trump can declare an emergency and order the building of a wall, future presidents would be given a blank check to declare emergencies and to address (say) climate change and gun violence.
Under the National Emergencies Act, the central question is not whether the president has declared a national emergency. It is whether he can point to a specific authority, after such a declaration, to respond to the problem that concerns him.
In the cases of climate change and gun violence, a president would have to identify some such authority. Perhaps he could find some legal bases for action – but there isn’t likely to be a whole lot there.
The point might seem a bit technical, but it’s exceedingly important. The National Emergencies Act is far from perfect, and it deserves some serious rethinking. But it doesn’t mean that a president can declare an emergency and claim the power to do whatever he wants.
4. The legality of Trump’s decision will probably turn on highly technical provisions involving the use of funds for military construction projects.
After the lawful declaration of a national emergency, the president has the authority to require military officials, including the Defense secretary, to engage in “military construction projects,” if certain requirements are met.
Perhaps the most relevant of these provisions, and very possibly Trump’s best bet, allows the Defense secretary to divert resources from an existing “civil works program” to other construction projects, including “authorized” military construction projects “that are essential to the national defense.”
We can’t rule out the possibility that Trump can successfully invoke this provision. But in court, at least three serious questions will be asked.
First, has the wall been “authorized” in the relevant sense? Second, is the wall a “military construction project”? And third, is it “essential to the national defense”?
If the answer to any one of these questions is “no,” then Trump loses. Getting to “yes” on all three will not be so easy.
Here is a broader lesson. It is important to distinguish between two questions. The first is whether a president has undertaken an action that is, in some technical sense, unlawful. The second is whether a president has undertaken an action that is, in some fundamental sense, illegitimate in a democratic society.