Thread by @willchamberlain

A thread on how President Trump could declare a National Emergency

And use his executive authority to #BuildTheWall

With citations (because we're not clowns here)

First, 50 U.S.C. § 1621 gives the President the authority to declare a national emergency.

He must transmit the proclamation to Congress and publish it in the Federal Register.

50 U.S.C. § 1631 requires that the President specify the *other* statutes he intends to invoke to justify further actions.

We'll explore some of those other statutes in a few posts.

A good example.

In 2015 Obama declared a National Emergency relating to civil strife in Burundi. Notice he cites other statutory provisions - those are the ones that lay out the *specific* emergency powers he'll be using.

A common question - "OK, so let's say President Trump declares a National Emergency. Can't Congress stop him?"

Not really. Two ways that a National Emergency can be terminated.

1) Presidential proclamation
2) A joint resolution of Congress (which would need a veto override)

Now, let's look at the specific statutes available to allocate funding/personnel to wall construction. First, the gem, 33 USC § 2393(a).

It gives the Secretary of Defense two basic powers when a national emergency is declared.

First, it grants the authority to terminate or defer any Department of the Army civil works project that the Secretary deems "not essential to the national defense."

Second, it gives the Secretary authority to take "funds, personnel, and equipment" from other civil works projects...

"to construct or assist in the construction, operation, maintenance, and repair of authorized civil works...essential to the national defense."

Also available is 10 USC § 2808, which creates a similar mechanism for "military construction projects."

This is more of a stretch, as it's not clear the wall would qualify as a "military construction" project - given that DHS currently is in charge.

So, to sum up what we've established so far.

The president can:

1) Declare a national emergency pursuant to 50 USC § 1621
2) Invoke 33 USC § 2293 and 10 USC § 2808 for the specific emergency powers necessary to allocating funding and personnel to build the wall

Reading this, you might wonder why an esteemed Yale professor, Bruce Ackerman, wrote an article suggesting that Trump couldn't do this and suggesting that any military forces who participated would be committing a federal crime.

He cites older statutes that prohibit the use of the Military to execute a law domestically - except when "expressly authorized by an Act of Congress"

It's a good thing there are statutory provisions like 33 USC § 2293 to assuage the Professor's concerns!

Professor Ackerman suggests that if Trump were to invoke the National Emergencies Act, both houses of Congress could repudiate it immediately with simple majority votes.

This is wrong. The statute requires a joint resolution - which would have to get past a Trump veto.

Professor Ackerman rightly cites Youngstown (the Steel Seizure cases) as the relevant authority for discussing the limits of executive power.

In this case, however, President Trump would be acting pursuant to statute, which would mean his "authority is at its maximum."

To sum up: the President has clear statutory authority to build the wall.

He should end the shutdown and simply proceed to fund the wall using this method.

If civil strife in Burundi is a national emergency, so is this.

FIN