Loosely written laws and established precedents are on his side.
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For a moment, let’s set aside aside the question of “should he do it?” … and focus on “can he do it?”.
There’s a great legal analysis in the right-leaning Federalist that concludes
You can (and should) read the whole article. It weaves legal specifics with tight logic.
Here are my key takeaways…
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Key Takeaways
1. The are many statutes that establish the government’s mandate to secure the border
For example, U.S. Code § 211-6 which establishes the U.S. Border Patrol and specifies its “primary responsibility” to be “interdicting persons attempting to illegally enter or exit the United States or goods being illegally imported into or exported from the United States at a place other than a designated port of entry”.
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2. Homeland Security (DHS) is charged with securing the U.S. border and has the authority to “take all actions, including physical infrastructure to prevent unlawful entry by aliens into the United States”
The DHS authority is established by the Secure Fence Act of 2006 (Public Law 109-367).
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3. It is indisputable that illicit drugs are coming across the border and that persons are illegally entering the country.
Challenges that the number of illegal entries has slowed or that the greatest proportion of drugs flow through port-of-entry are legally irrelevant.
The border protection statutes specify occurrence, not magnitude or trend.
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4. On multiple recent occasions, the DHS has requested and received military deployments to support their border protection responsibilities.
The deployment of military personnel to the border has been minimally contested and the multiple deployments have established clear precedent.
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5. The president has the authority to “reprogram certain civil defense funds to support the federal response to a declaration of national emergency” … particularly in situations when the military is deployed
Said authority is granted by 33 U.S. Code § 2293 – Reprogramming during national emergencies
“That law allows the president, pursuant to a declaration of a national emergency that requires the use of the armed forces, to reprogram funding for nearly all Army civil works projects towards the construction of a border wall.”
Cutting to the chase: The consequences (maybe, intended, maybe not) of several statutes executed by the Congress … in effect, delegated the “power of the purse” to the president …. by :opening the purse” in special situations for discretionary presidential spending.
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6. The National Emergency Act of 1976 granted presidents unfettered authority to declare national emergencies.
Specifically, the NEA “did not constrain the president’s authority to declare an emergency, or set conditions on what may be considered an emergency.”
Said differently, “emergency” is in the eye of the beholder, and the president, by statute, is the designated beholder. Period.
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Put it all together and I agree with the Federalist’s analysis that Trump is on pretty solid legal ground.
Of course, left-leaning lower courts (think: 9th circuit) will likely try to legislate from the bench and enjoin the Trump’s emergency declaration.
But, the Supreme Court – bound by enacted statutes (that are to be presumed Constitutional without challenge) … and prior case precedents are likely to rule in Trump’s favor.
We’ll see…
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