Arnold Ahlert / February 11, 2019

Trump Can Build a Wall Without Congress

The president has several options to break what has become an inexcusable stalemate.

“No issue better illustrates the divide between America’s working class and America’s political class than illegal immigration. Wealthy politicians and donors push for open borders while living their lives behind walls and gates and guards.” —President Donald Trump, State of the Union Address

There is no question that if a wall is to be built on America’s Southwest border, it will only be done if Trump does it himself. We know that because both parties had complete control of the executive and legislative branches of the federal government for two years each, and neither one would defy the open-border, cheap-labor, big-government globalist agenda. Can Trump build a wall without Congress? The answer appears to be yes.

We begin with a paper released Jan. 10 by the nonpartisan Congressional Research Service (CRS) entitled, “Can the Department of Defense Build the Border Wall?” It cites federal statute 10 U.S.C. § 284, which states that the secretary of defense “may provide support for the counterdrug activities or activities to counter transnational organized crime” that may include “an unspecified minor military construction project,” as well as the “[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.”

The paper further explains that using Section 284 “would not require a declaration of a national emergency under the NEA. However, the DOD’s Section 284 authority to construct fences appears to extend only to ‘drug smuggling corridors,’ a condition that may limit where DOD could deploy fencing.”

A possible sticking point? “Drug corridors” have not been defined by law.

What about Trump’s threat to declare a national emergency? “For much of our history, presidents have understood the Constitution’s grant of ‘the executive power’ to include a power to declare national emergency,” explains former Deputy Assistant Attorney General John Yoo. “Thomas Jefferson effectively did so in response to Aaron Burr’s effort to raise a rebellion in Louisiana; Abraham Lincoln did so, with far more justification, at the start of the Civil War; FDR did so, with far less justification, at the start of his presidency in response to the Great Depression; and Harry Truman did so at the start of the Korean War.”

Yoo further explains that Congress passed the National Emergencies Act (NEA) in 1976 to restrict presidential power. But the law did not define national emergencies per se, or place any limits on the president’s ability to declare one. More important, Yoo notes “that every president since 1976 has used the NEA to declare a national emergency, several under circumstances far less immediate than this one, and the Supreme Court has never overturned one.”

The NEA grants the president the power to “seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication.” Congress can counter it by passing a joint resolution negating the president’s declaration, at which point Trump would have to convince them that the mayhem taking place at our border constitutes an “emergency.”

According to America First Policies, a pro-Trump group that asserts its statistics are based on data from the DHS and U.S. Customs and Border Protection, approximately 1,800 illegal aliens attempt to breach the border every day, and about half succeed. If that’s accurate, approximately 328,500 illegals successfully sneak into America each year. For perspective, as of 2017 there were only 57 cities in the entire nation with populations greater than a single year’s influx of illegal aliens.

If that doesn’t constitute a national emergency, what does?

What about Congress’s ability to deny Trump funding for any construction? The NEA allows the president to spend previously appropriated money, such as funds for disaster relief for “military construction projects.” Approximately $10 billion is available. 10 U.S. Code § 2808 also allows the military to complete “construction projects” during a national emergency, and unspent Department of Defense (DOD) funds totaling $100 billion could be used. Congress could pass a joint resolution denying that spending, but Trump could veto it, thus requiring a two-thirds vote in both chambers to override that veto.

Democrats and their constituents would cheer such an override. But Republicans would be committing political suicide, by demonstrating beyond a shadow of a doubt that their Chamber of Commerce campaign contributors take precedence over their base — and their purported principles.

The Courts? No doubt “resistance” jurists in several lower courts would leap at the chance to thwart Trump’s agenda, just as they have at an unprecedented rate already.

The Supreme Court? In 1981’s Dames & Moore v. Regan, SCOTUS, addressing actions taken by both the Carter and Reagan administrations related to the Iran hostage crisis, determined that when Congress broadly delegates foreign affairs powers to the executive branch, it does not necessarily follow that Congress’s failure to grant more specific authority precludes a president from exercising it. Rather Congress’s silence would be seen as acquiescence, especially in the advent of an emergency.

Moreover, Congress not only hasn’t passed a law denying Trump’s authority to protect the border, it did pass a law known as the Secure Fence Act of 2006 by a bipartisan margin of 283-138 in the House and 80-19 in Senate — including “yes” votes by then-Senators Barack Obama, Hillary Clinton, Joe Biden, Chuck Schumer, and 22 other Democrats.

An additional statute, 33 U.S. Code § 2293, is also in play. In the event of war or a national emergency, it empowers the secretary of defense to reallocate resources from projects “he deems not essential to the national defense,” and apply them to “construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.”

Given SCOTUS’s decision on the travel ban, it is likely the Court sides with the president. However, if the Trump administration can’t get SCOTUS to fast-track a hearing on the inevitable avalanche of lawsuits aimed at preventing a wall’s construction, the issue could conceivably become one of the centerpieces of the 2020 presidential campaign.

In 2002, Duke University constitutional law professor H. Jefferson Powell, who served in the DOJ under the Clinton and Obama administrations, asserted, “The president has a constitutional responsibility, independent of any act of Congress … to preserve the physical safety … of the United States against foreign threat.”

Regardless, Democrats, and a few Republicans are already marshaling their forces, and the reliably hypocritical Sen. Marco Rubio (R-FL), who once favored “real border security measures,” added a dollop of fearmongering to the mix: “If today, the national emergency is border security … tomorrow the national emergency might be climate change.”

Border security? Try constitutionally mandated national security, Mr. Rubio — a lack of which represents the quintessential national emergency. Borders are the essence of the nation-state, no matter how vehemently they are opposed by a ruling class beholden to their globalist masters. The same globalist masters who have coordinated the avalanche of hate and hysteria directed at the one man and his “deplorable” followers for thwarting their ambitions since 2016.

Build the wall, Mr. President. Those who still believe in nations will stand behind you.

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