Thread by @willchamberlain

A thread analyzing this David French piece - and where it comes up short.

Warning - we'll be going into the legal weeds here, it would help to read the pinned thread

nationalreview.com/2019/01/no-tru…

First, I agree with French that the President does not have inherent, unilateral authority - as a constitutional matter - to build the wall.

That's the lesson of Youngstown (the Steel Seizure cases)

Trump must be able to point to statutory authority.

I also agree with French that 10 USC § 2808 doesn't provide the necessary authority, for the reasons French talks about. It would be very difficult to characterize the wall as a "military construction project."

Where I disagree with French is on the proper construction of 33 USC § 2293, which French helpfully lays out here.

I think this gives President Trump the authority to direct the Secretary of Defense to allocate funds to constructing a physical barrier on the border.

French makes two basic arguments as to why this statute does *not* allow for funding to be redirected to further construction:

1) such a project has not been "authorized"
2) there is no credible showing that border barriers are "essential to our national defense"

As for the first argument, I simply think French is wrong. The Secure Fence Act of 2006 gives broad authority to the DHS Secretary to "secure operational control of the border" with "physical infrastructure."

To my knowledge this Act has not been repealed or amended.

The same act goes on to define "operational control" in very stark terms - the prevention of "all unlawful entries" into the United States.

This is a remarkable grant of power!

What's missing? Funding.

French's second objection - that the project is not "necessary to the national defense" - seems a much weaker argument.

He says "there has been no showing."

But the statute does not require such a showing - or provide a mechanism to contest such a showing!

I think that French's reading of this statute is cramped - especially when we're talking about a statute granting *emergency powers*.

The DHS Secretary is commanded to stop all unlawful entry and authorized to build physical infrastructure to do so. That's "authorized."

FIN

Moreover, my reading is supported by the Congressional Research Service's analysis of the statutory framework for border wall construction, available here:

fas.org/sgp/crs/homese…

For example, this, from CRS, saying that DHS has refrained from building more physical infrastructure for policy reasons, not because they lack statutory authorization: