During his first prime-time address from the Oval Office on Tuesday night, President Donald Trump implored Congressional Democrats to give him the $5.7 billion he wants to build a wall along the nation’s southern border.
Democrats responded about how you’d have expected them to; in their rebuttal right after Trump’s remarks, U.S. Senate Minority Leader Charles Schumer, D-N.Y., and U.S. House Speaker Nancy Pelosi, D-Calif., didn’t budge and dismissed the border wall as “ineffective,” “unnecessary” and a “waste.”
Trump has said he’ll declare a national emergency if Congress doesn’t give him the money he wants and put the military to work to build it. He also said Mexico would “indirectly” fund its construction through the rebooted and yet-to-be ratified U.S.-Mexico-Canada Free Trade Act.
But does he have the legal authority to declare an emergency?
Those on the left say no.
In an opinion piece for The New York Times, Yale University law professor Bruce Ackerman argued that Trump doesn’t have the authority to declare an emergency. And if he did put soldiers to work building it, they would “all be committing a federal crime.”
Is he right?
Ackerman claims our longstanding legal tradition is that the chief executive is prohibited from using the military to enforce domestic law.
The remainder of Ackerman’s argument stems from that first fishy premise. He explains that although Congress granted the Coast Guard authorization to enforce domestic law in U.S. waters, “there is no similar provision granting the other military services a comparable power to ‘search, seize and arrest’ along the Mexican border.”
But the president is not talking about having the U.S. military “search, seize and arrest” on the border.
Ackerman explains that although Congress authorized the military to detain suspected members of al-Qaeda or the Taliban in the U.S., “it is an unconscionable stretch to use this proviso to support using the military for operations against the desperate refugees from Central America seeking asylum in our country.” Yet, the president is not talking about using the military to do that. He’s talking about using it to build a wall.
Lastly, Ackerman explains, “the [U.S. Supreme] court invalidated President Truman’s attempt in 1952 to use his powers as commander in chief to nationalize steel mills in the face of labor strikes.” But, building a wall is not nationalizing a steel mill or intervening in a labor dispute. The president will have to take some private property to build the wall, but he has always had that authority under eminent domain.
Contrary to Ackerman’s claims, the law supports the president’s position.
Under Article II Section 2 of the U.S. Constitution, the president is the commander in chief of the armed forces and has the power to direct the military at all times.
Throughout history, presidents have ordered our military to our southern border, without Congressional approval, for various reasons, including to secure the border, protect Americans conducting trade, and to punish Mexican banditos (i.e., “bad hombres”). Our military has built several fortifications along the Rio Grande in the past.
In 1976, Congress passed the National Emergency Act authorizing the president to declare a national emergency and undertake military construction projects and use funds already appropriated to pay for them.
What’s a national emergency? Apparently, it’s whatever the president says it is. We’re still under President Obama’s national emergency to combat the swine flu. We’re also under an existing state of emergency to combat terrorism; and, there are several, documented cases of terrorists crossing our southern border.
The situation at the U.S./Mexican border is a crisis. Last November, illegal border crossings plateaued 51,856 people, a figure that The Hill, a newspaper that covers Congress, described as a “relatively high, but stagnant trend”
Hundreds of migrants have recently tried to storm our border; many broke through the dilapidated fence near San Diego.[
Over the years, some who have illegally crossed have committed heinous crimes here, including the killings of Kate Steinle, Mollie Tibbetts and Ronil Singh.
Several nations, including Norway, Spain and Austria, are putting up border barriers to stop illegal migration. And, the U.S. Defense Department can do it here.
Both agencies are under the authority of the Department of Defense. The Corp has already been assessing the various prototypes for the wall submitted by the Trump Administration.
This matter is cued up and ready for Trump to make the declaration, direct that money already appropriated be used and build the wall. The president can continue to negotiate with Congress on new funding, but in the meantime, he can act now to make America safe.
PennLive Opinion contributor Marc A. Scaringi, of Camp Hill, is an attorney and radio host. His work appears biweekly.