Politico’s White House reporter, Nancy Cook, came out with a curious article on Thursday, laying out how, with Congress unlikely to approve any funding for President Donald Trump’s planned border wall, he should instead go the route of a national emergency declaration, and that it is Breitbart News that has been leading the way in framing the argument for such a declaration.
The White House is finalizing details of a potential national emergency declaration to secure President Donald Trump’s border wall, even as lawmakers are trying to broker an immigration deal that could avert another shutdown in just over two weeks. Trump met with his budget chief, acting chief of staff Mick Mulvaney, Jared Kushner and other top officials, including White House lawyers, on Tuesday to walk through the logistics of such a move. And White House aides have been quietly meeting with outside conservative political groups to build support for the president to take such an action. Those talking points, which emphasize Trump’s legal authority, have begun to show up in such conservative media outlets as Breitbart News.
Breitbart News has certainly been ahead of the curve with the rest of the media on this particular matter. A week ago, on Jan. 24, Breitbart News legal editor Ken Klukowski explained how President Trump has the legal authority–already delegated to him from Congress–to build the wall on the border.
Congress has passed 136 statutory provisions pertaining to presidential emergency powers over the years, delegating significant authority to the president when he declares an emergency. Congress’s research arm notes that in certain types of emergencies, these powers include restricting travel, seizing commodities or property, and regulating businesses.
Not only that, but Congress specifically amended the Posse Comitatus Act – the law that prevents U.S. military troops from operating on U.S. soil, found at 18 U.S.C. § 1385 – in the 2007 National Defense Authorization Act to allow U.S. troops to function domestically under certain circumstances. One of those circumstances is to enforce federal law. Another is that the defense secretary can deploy troops to stop illegal aliens from crossing the U.S. border if the U.S. Department of Homeland Security (DHS) requests military assistance.
Klukowski cites federal law, specifically 33 U.S.C. § 2293(a), in which, once the president declares an emergency, the Secretary of Defense:
…without regard to any other provision of law, may … apply the resources of the Department of the Army’s civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.
Klukowski adds in the next paragraphs:
The next subsection of that law adds that this authority continues until the president declares the emergency has ended, plus an additional 180 days.
Congress passed the Secure Fence Act in 2006, which explicitly authorizes building physical barriers on the U.S.-Mexican border. But even if Congress had not passed that law, the separate law quoted above gives President Trump all the authority he needs to act without further approval from Capitol Hill.
Once President Trump declares an emergency on the border, he can direct Acting Defense Secretary Patrick Shanahan to order the Army Corps of Engineers to begin constructing the wall. Congress has already appropriated $13.9 billion in emergency funds that the Corps can use, much more funding than the president’s $5.7 billion plan calls for.
Additionally, if DHS requests military support, the Pentagon can then also send however many additional troops the president needs to protect the workers and secure the border during construction.
Lawsuits are likely, but it is possible that only Congress itself has standing to sue. The only other injury that any other plaintiff could claim is that they have a legal right to illegally enter the United States. Even the most liberal judicial activist might look askance at such a lawsuit.
It’s hardly just that Klukowski piece that Cook is talking about. On Thursday, Breitbart News’s Michael Patrick Leahy reported on how the nonpartisan Congressional Research Service (CRS) has determined that President Trump can build the wall legally without further congressional authorization. From Leahy’s report on the CRS report: