Page 9 - Ohio Vol 5 No 2
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PATRICK J. PEROTTI | Constitutional Law
Can President Trump Use the National SEmergency Act to Fund a Border Wall
ince the Constitution grants the hundreds of provisions does not pro- ing from economics, heath, security, power of the purse expressly to vide authority for the president to banking, and the list goes on. Signi -
take this action of funding additional cantly, almost none of those acts was a president has no power to obtain border wall. ever challenged in court, however,
Congress (Art 1, Sect. 9, Cl. 7),
funding except very limited authority from only three possible sources: (1) a Congressional Appropriation; (2) emergency power granted by Con- gress to the president under a vari- ety of statutes on particular subjects; or (3) very limited inherent Article 2 Chief Executive Power.
President Trump recently declared a national emergency and directed monies from other programs to in- stead be spent for additional border wall funding. Can he do that? First, let’s get the issue straight.  e me- dia is proclaiming that the president is proceeding under the National Emergency Act (50 U.S.C. 1601, et seq).  at is incorrect.  e NEA was passed by Congress solely to stan- dardize the procedure by which na- tional emergency declarations may be issued, such as how long a valid decla- ration of emergency can last; whether a declaration must be renewed; etc.  e NEA does not create substantive grounds for a national emergency, nor does it provide any funding.  e question therefore is, what is a valid declaration of emergency? And that is not de ned in the NEA. Rather, there are over 100 other laws passed by Congress throughout the years that give the president emergency powers. To qualify as a national emergency, the action intended by the president must  t into one or more of those.
Instead of focusing on that ques- tion, the media is embroiled in a debate “whether there is a national emergency.” But that question is aca- demic, if the substantive law in those
So what provisions are being cited by the president? It cites two provi- sions as authority for wall funding. One of them permits the president to use funding already allocated to military construction to begin “mili- tary construction projects not oth- erwise authorized by law.” But here, Congress already authorized speci c funding for additional border wall (albeit less than the president want- ed.) A case we might remember from CON LAW years ago is Youngstown Sheet and Tube v. Sawyer.  ere, the Court struck down President Tru- man’s emergency order because it con icted with a plan Congress was already implementing on the same subject.
 e second statute relied on by President Trump allows the presi- dent to take away troops and other resources from Department of Army civil works projects and apply them to “authorized civil works, military construction and civil defense proj- ects that are essential to the national defense.” But the obvious question is whether this is an authorized con- struction. First, authorized by whom? Second, is something authorized if it contradicts Congressional action on the same issue? Considering that Congress has speci cally denied the extent of funding the president wants for this project, this seems like a ques- tionable basis for upholding the presi- dent’s action.
President Trump is not the  rst president to use national emergency. Many prior presidents have done so to justify taking very diverse acts, rang-
AttorneyAtLawMagazine.com
because virtually every one was ei- ther quickly rati ed by Congress, or strongly supported by public opinion.
In contrast, the wall has split the country down the middle. For that reason, and the very unclear authority mentioned above, this writer expects the Supreme Court to be very hesitant to uphold the president’s action.
As to the very rare and very limited third basis of presidential spending power, Harvard Law School has an analysis and discussion of the implied power of the Chief Executive under Article 2 to fund an activity without Congressional approval (or even with Congressional disapproval). View this article online for a link to that re- source.
In conclusion, the NEA provides no power to fund emergency presiden- tial action.  e president is relying instead on certain statutory grants by Congress of emergency power.  ose provisions do not appear to substan- tively allow the president power to construct additional border wall, even if an emergency could be found to exist. In fact, they suggest complete inapplicability, since Congress spe- ci cally denied the president’s fund- ing, and undertook its own border construction program with reduced funding.  e undersigned strongly supports the president in his desire for additional border wall and secu- rity funding. But
declaring a nation- al emergency does not seem a lawful way to accomplish that goal.
Patrick J. Perotti is an award-winning national leader in the  elds of consumer class actions, employment dis- crimination, and wage and hour litigation. With verdicts and settlements exceeding $600 million, Patrick is regu- larly selected to lead class suits in Ohio and around the country. His reputation developed from a demand for outcomes, which not only offered compensation to class members but also stopped unlawful government and corporate practices. Using the class action device to achieve deterrence, he has directed more than $30 million in unclaimed class funds from his settlements to charities and nonpro ts around the country.
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