‘Emergency’ would set dangerous precedent
Trump seeks to divert funds and seize private property
President Donald Trump recently said he will “almost ... definitely” resort to emergency powers to build a wall on the Mexican border if Congress does not give in to his demands. That might be his way out of this government shutdown if Democrats continue to hold the line. But it should not get him that wall.
In order to build it, Trump would need not only funds but also the power to seize property from unwilling owners through the use of eminent domain. Allowing him to do so would set a dangerous precedent and threaten the property rights of thousands of Americans. Poorly drafted laws give the president a wide range of easily abused emergency powers. Even if he can declare a “national emergency,” that does not mean he can use it to pay for and build a wall.
Some point to 10 U.S.C. 2808 and 33 U.S.C. 2293 as possible justifications. But Section 2808 states that, during a “national emergency” that “requires the use of the armed forces,” the president can reallocate defense funds to “undertake military construction projects … that are necessary to support such use of the armed forces.” No threat posed by undocumented immigration “requires the use of the armed forces,” and it is hard to see why a wall is “necessary to support such use.” In fact, longstanding laws bar the use of troops for domestic law enforcement (including enforcing immigration law).
Section 2293 also only applies to a war or emergency that “requires or may require use of the armed forces.” Another law allows the military to condemn property for various purposes, such as “fortifications.” But that only extends to projects for which funding has been appropriated by Congress.
Arguments that Trump can use disaster relief funds to build the wall are even more implausible.
The outcome of a legal battle over emergency powers is hard to predict. Administration lawyers may come up with creative new legal arguments. Too often, courts give presidents undue deference on security and immigration issues. But judges should keep in mind the importance of rigorously enforcing legal constraints on dangerous exercises of emergency powers.
Even if the president can use emergency powers to get funds, that does not mean he can seize property by eminent domain. The Supreme Court has held that the use of eminent domain must be expressly authorized by law. No emergency law expressly permits use of eminent domain for border walls not otherwise authorized by Congress.
A third of the needed land is owned by the federal government or Native American tribes. The rest would have to be taken from private owners and state governments, many of which are unlikely to sell voluntarily.
The result would be one of the largest federal condemnations in modern U.S. history. Construction and legal battles can drag on for years.
This underscores the absurdity of claiming that a wall is needed to combat an “emergency.” If the supposed emergency can be fixed by a wall that takes years to build, this means it was not an emergency in the first place.
If Trump succeeds in using emergency powers to build the wall and seize property through eminent domain, future presidents could exploit this dangerous precedent. They, too, could declare a “national emergency,” and then divert military funds and take private property without congressional authorization. Republicans who cheer Trump now will regret it if the next Democratic president uses the same powers to declare that climate change is a “national emergency” and then allocate funds and take land for the gigantic “Green New Deal” program many progressives advocate.
If Trump succeeds, presidents could use the same ploy almost any time they want funds or seek to condemn private property for purposes Congress has not authorized, so long as there is some vague security pretext. To their credit, conservative commentators Philip Klein and David French have highlighted the risks of going down this very slippery slope. No one person, whether Democrat or Republican, can be trusted with such sweeping power.