Presidents are free to deploy our troops to 140 countries without congressional authorization and build all sorts of wall and infrastructure in these countries, yet we are told a president can’t take a basic defensive action to repel an invasion of our own country: the construction of a wall twice authorized and even mandated by Congress. In reality, while it would be better for Congress to explicitly fund a new wall, the president is right to leverage the debate by threatening to use power Congress has already delegated to at least begin constructing portions of the wall. Whether we agree with such delegation or not, there is no more appropriate situation in which it should be used than with our own border.
Obviously, absent congressional authorization to expend funds, the president lacks any inherent authority to spend money. Article I, Section 9 unambiguously states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” However, in this case Congress has explicitly authorized fencing at the border, and although it did not appropriate the funding, the president can rely on funding through a declaration of a national emergency. Whether this rises to the level of an emergency or not is the subject of a political debate that should be settled between the political branches, not the courts.
Section 2808 of the Emergencies Act of 1976 allows the secretary of defense to “undertake military construction projects” that are “not otherwise authorized by law that are necessary to support such use of the armed forces” in the event that the president declares a national emergency. A parallel statute, <33 U.S. Code § 2293, allows the secretary, during such a declared emergency, to redirect “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.”
There are no parameters governing the criteria for such a declaration or defining the types of projects that might be in order. The only thing the secretary of defense has to do is to communicate the nature of the decision and its costs to the relevant congressional committee, but he does not need to obtain congressional approval. One might legitimately feel uncomfortable with such broad authority delegated to the president, but nonetheless, this is the law on the books. Congress has delegated a lot of authority to the president for the purpose of protecting our sovereignty and security, not for nullifying immigration law and sovereignty, as Obama did with the DACA amnesty. Thus, any comparison to Obama is absurd.
Nothing about these sections should be justiciable in a court, but according to our courts, everything is justiciable. Nobody should get standing to sue in this case. If Congress doesn’t like what Trump does, it has many tools to check him.
Seemingly, the president would need some sort of deployment of troops that the wall would be supporting, in order to fulfill Sec. 2808 authority, but that is not required for Sec. 2293 authority. However, the president, in my view, would be wise to deploy our military anyway. As I’ve chronicled in my series on the border, the threats from the cartels and the degree of violence on our border are quite literally the reason why we have the military, not to spend $125 billion on rebuilding Kabul. As for Sec. 2293, I can’t imagine what is more essential for “national defense” than blocking the most dangerous transnational criminal networks from placing spotters on our soil monitoring all of our border agents for the purpose of bringing in drugs, gangs, criminals, and terrorists.
Let’s not forget that on October 26, 2017, President Trump used a 1944 statute to declare a public health emergency with the opioid crisis. Well, given that the entirety of the crisis is coming from our southern border, brought in by violent cartels and facilitated and fueled by cross-border migration, that makes this a national defense emergency as well.
But his authority is even stronger in the field of combating drug smuggling, even without the declared health crisis. 10 U.S.C. § Section 284 allows the secretary of defense, upon request from federal or state law enforcement dealing with drug trafficking, and in conjunction with the secretary of state, to “provide support for the counterdrug activities or activities to counter transnational organized crime.” Subsection b(7) allows the DOD to provide help in the form of “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”
This is not some parsimonious loophole for an excuse to build a wall. This is the whole enchilada, folks. The main reason we need a wall is to combat the smugglers and the cartels who use the migration to bring in their contraband and dangerous criminals. Last October, the DOJ designated MS-13, Cartel de Jalisco Nueva Generacion (CJNG), Sinaloa Cartel, and Clan del Golfo as transnational crime organizations (TCOs).
We can haggle over the definition of “fence” in this statute as opposed to a wall, but the point is the same. Either way, the determination of such an emergency is subject to political debate, not a legal debate.
None of us like broad delegated authority on appropriations, but given that Congress has delegated such authority to spend money, I have no problem using it on a project that has already been authorized under statute. It’s not just the drug trafficking statute. Section 102(a) of the 1996 IIRIRA provides that the secretary of homeland security “shall take such actions as may be necessary to install additional physical barriers and roads … in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.” The Secure Fence Act of 2006 mandated that DHS “construct fencing “along not less than 700 miles of the southwest border.”
While there is some ambiguity as to the floor of the mandate, a 2017 Congressional Research Service report makes it clear there is no ceiling on the authorization a president has in terms of mileage and prototype. “Indeed, nothing in current law would appear to bar DHS from installing hundreds of miles of additional physical barriers,” it contends, “at least so long as this action was determined appropriate to deter illegal crossings in areas of high illegal entry or was deemed warranted to achieve ‘operational control’ of the southern border.”
There are tens of billions of DOD funds that are unspent at this point and will be used for more nation-building and refereeing of tribal warfare in the Middle East. If we are going to acquiesce to lax congressional oversight and robust delegation of authority to build walls for the Afghani military, then you better believe we can use this delegated authority to build our own wall against an invasion of cartels, gangs, criminals, and migrants.
Declaring an emergency at our border is something that must be done anyway – border wall or no border wall. Deploying our military is something that should have been done a long time ago to combat the cartels. The border wall has been authorized numerous times by Congress. To use the existing emergency and its delegated authority to redirect funding for the wall Congress has owed us for a while might not be the best solution, but it is the only lawful one until Democrats are forced to care more about the security of Americans than they do about their endless voter registration drive.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.