Trump, the courts, and national emergency

President Trump has hinted at the possibility that he will declare a national emergency and attempt to fund the border wall with money earmarked for defense.  According to Fox News, President Trump is considering several sections of the National Emergency Laws, including 10 USC §284 and 10 USC §2808, to fund the wall.  If Trump decides to do so, Democrats will likely challenge his decision on legal grounds.  However, whether or not a court would even entertain a legal challenge is questionable.

Mark Levin recently discussed this point in a CNS News article.  Specifically, according to Levin, the National Emergencies Act contains a provision that enables Congress to put a check on a president by way of a joint resolution passed by a majority of Congress.  Therefore, the court should have no role in such decisions, which Levin claims are political in nature.

A recent article in The Hayride supports Levin's arguments.  Generally speaking, federal courts will refuse to hear a case if it presents a political question.

[T]he "political question" doctrine [is] a judicial rule limiting the ability of the Courts to decide questions of political policy, would prohibit a Judge from supplanting the judgment of the President with their own political judgment.  See Beacon Products Corp. v. Reagan, 633 F.Supp. 1191 (1986) and also, Mobarez v. Kerry, 187 F.Supp.3d 85 (2016).  Thus, an activist Federal Judge should not be able to decide whether or not there exist [sic] a valid national emergency, only the President can do so and only Congress can act to restrain the power they have granted to the President.

Therefore, if the president's decision to declare a national emergency under the act is deemed a political decision, or one that relates to political policy, the courts may refuse to hear a legal challenge.  A review of how this doctrine has been applied can be found here.

Some have pointed to the case of Youngstown v Sawyer (decided in 1952) to support the position that the president does not have the power to declare a national emergency and to use military funds to build a wall on the border.  However, that case was decided prior to the emergence of the National Emergencies Act of 1976.  Also, in Youngstown, the Supreme Court ruled that President Truman lacked the power to act because it was not conferred to him in the Constitution or by Congress.  Unlike in the case of Youngstown, the act and other statutory provisions within the act appear to provide such authority.

For example, in a recent L.A. Times article, Elizabeth Goitein, a scholar at the Brennan Center at NYU, referred to one of the provisions that the president could rely on.  According to Goitein, "the federal law that applies to the Defense Department includes a special provision on "construction authority in the event of a declaration of war or national emergency."  It says that in the event of war or the "declaration by the president of a national emergency ... that requires use of the armed forces, the secretary of Defense, without regard to any other provision of law, may undertake military construction projects ... not otherwise authorized by law."  Since President Trump views the wall as a necessity to protect against those who are "invading" the country at the border, this provision could provide the necessary authority that was lacking in Youngstown.

Time will tell how this plays out.  The best-case scenario would include a bipartisan agreement to fully fund Trump's broader border security plan (including the border wall) and to reopen the government.  Sadly, this looks unlikely at the moment, given congressional Democrats' continued refusal to provide adequate funding.  If this continues, Trump might not have any other option but to declare an emergency in the not too distant future.

Mr. Hakim is a writer, commentator, and attorney.  His articles have been published in the Washington Examiner, the Daily Caller, The Federalist, The Western Journal, American Thinker, and other online publications.

Twitter: @ThoughtfulGOP