ARIZONA NEWS

Constitutional experts concerned after Trump declares state of emergency

Feb 17, 2019, 3:32 PM | Updated: 3:32 pm
President Donald Trump speaks during an event in the Rose Garden at the White House to declare a na...
President Donald Trump speaks during an event in the Rose Garden at the White House to declare a national emergency in order to build a wall along the southern border, Friday, Feb. 15, 2019, in Washington. (AP Photo/ Evan Vucci)
(AP Photo/ Evan Vucci)

PHOENIX – President Donald Trump declared a national emergency on Friday to redistribute government funds to build his long-sought after wall along the U.S.-Mexico border, but experts question whether it’s constitutional.

“So we’re going to be signing today, and registering, national emergency and it’s a great thing to do, because we have an invasion of drugs, invasion of gangs, invasion of people and it’s unacceptable,” Trump said in a Rose Garden address.

In a statement, Rep. Tom O’Halleran, D-Flagstaff, said this action would divert resources from the Department of Defense and law enforcement programs to fund a border wall. The statement also said that $3.5 billion from the Pentagon’s military construction fund, $2.5 billion from the Pentagon’s drug interdiction initiative and $600 million from the Department of the Treasury’s drug forfeiture program will be shuffled to fund the construction of the border wall.

Although the National Emergencies Act of 1976 grants the president broad authority to declare a state of national emergency, there is debate as to whether any federal laws grant the president the authority to redirect funds to the border wall construction and to instruct the military to build the wall.

The Brennan Center for Justice at the New York University Law School, a law and public policy center that specializes in constitutional issues, compiled a list of federal laws and the powers they grant to presidents that can be used in a time of war and during national emergencies.

The exact statutory powers that President Trump plans to use aren’t yet known because the emergency text has not yet been made public.

That uncertainty worries Jon D. Michaels, professor at the UCLA School of Law, because he said the president has not shown the same level of responsibility, discretion and caution as previous presidents who have declared a national emergency.

“The level of responsibility that has been exercised (by earlier presidents) has been sufficient that we haven’t worried about all these extra statutory authorities kicking in because they’re not being exploited,” Michaels said.

The Brennan Center said that statutory powers 10 U.S.C. 2808 (a) and 33 U.S.C. 2293 might offer some legal cover for the president’s wall-building ambitions.

During a state of emergency, statutory power 10 U.S.C. 2808 (a) says that the secretary of Defense may undertake military construction projects that are necessary to support such use of the armed forces.

And statutory power 33 U.S.C. 2293 allows the Army to terminate or defer any Army civil works project and apply the resources to authorized military construction, civil defense projects that are essential to national defense.

Some constitutional law experts say there is no explicit power granted to the president by any federal laws or by the constitution, to use the military to build the border wall.

Professor Bruce Ackerman, Sterling professor of law and political science at Yale University and a constitutional expert, said Trump’s use of a national emergency presents a grave constitutional problem.

“It is illegal for the commander in chief to use military resources for domestic law enforcement, except where explicitly authorized,” he said, adding that no explicit authorization exists.

Ackerman said this will provoke a constitutional crisis involving the military if Trump orders his generals to begin construction on new border barriers.

“The important point is that the generals are going to have to decide immediately: Are they going to follow the law of the United States or are they going to follow the commander in chief?”

Because Trump “only pointed to issues of domestic law enforcement, criminal enforcement and the like in his remarks today,” Ackerman said, it would be an unconstitutional use of his executive powers.

In 1952, he said, the Supreme Court ruled in Youngstown Sheet & Tube Co. v. Sawyer that a president can’t use his commander in chief powers for domestic law enforcement. The case arose during the Korean War, when President Truman ordered the secretary of Commerce to seize and operate most of the nation’s steel mills to avert a expected steelworker strike.

Citizens for Responsibility and Ethics in Washington, a government ethics watchdog based in Washington D.C., already has filed suit against the Department of Justice for failing to provide documents outlining the legal authority of Trump’s emergency declaration. The American Civil Liberties Union and Gov. Gavin Newsom, D-Calif., announced they intend to file separate lawsuits in the coming weeks.

Once a challenge is filed in court, Ackerman said, “the Supreme Court is going to decide in six months to a year.”

In the meantime, the national emergency declaration can be undone if both the Senate and House of Representatives pass a joint resolution and Trump signs it. If he vetoes the joint resolution, it would require two-thirds of both the House and Senate to override the veto.

We want to hear from you.

Have a story idea or tip? Pass it along to the KTAR News team here.

Arizona News

(Twitter Photo/@dougducey)...
Associated Press

Arizona Gov. Doug Ducey lights 25-foot-tall tree at state Capitol

A 25-foot-tall white pine was lit by Arizona Gov. Doug Ducey on Wednesday in the lobby of the state Capitol's executive tower in a celebration marking the start of the holiday season.
13 hours ago
Travelers arrive from international flights at Newark Liberty International Airport on Nov. 30, 202...
KTAR.com

After 3-day dip, Arizona adds over 3,000 COVID-19 cases Wednesday

Arizona’s daily report of new COVID-19 cases was back over 3,000 on the first day of December after November ended with three days below that mark.
13 hours ago
(Phoenix Fire Department Photo)...
KTAR.com

Early-morning fire does heavy damage to Phoenix apartment

Fire destroyed an apartment balcony and displaced five people in Phoenix early Wednesday but no one was injured, first responders said.
13 hours ago
(Twitter Photo/@pchd)...
Associated Press

Tucson employees near 100% compliance with COVID-19 vaccine mandate

Tucson officials said 99% of municipal employees had at least been partially vaccinated against COVID-19 before Wednesday's mandate deadline.
13 hours ago
Kyle Rittenhouse listens as jurors are asked questions by the judge during jury selection at the Ke...
Associated Press

ASU student groups want Kyle Rittenhouse barred from taking classes again

Arizona State University students angered that Kyle Rittenhouse had been taking online classes and could enroll again are channeling their outrage into protest.
13 hours ago
(File photo by Christian Petersen/Getty Images)...
Griselda Zetino

Sky Harbor, Phoenix-Mesa Gateway Airport see increased traffic over Thanksgiving holiday

People who flew over the Thanksgiving holiday might’ve noticed more travelers as two Valley airports reported seeing increased passengers.
13 hours ago

Sponsored Articles

(Facebook Photo/NHTSA)...
Sweet James

Upcoming holiday season is peak time for DUI arrests

The holiday season may be the most wonderful time of the year, but it’s also the most dangerous time of the year to be driving. That’s why it’s important to remember to call Sweet James Accident Attorneys if you’re injured or arrested because of a DUI accident.
...
PNC BANK

How your family can explore the Musical Instrument Museum

Whether you want to spend a day with family, do crafts with kids at home, or have an adult night out, the Musical Instrument Museum in Phoenix has options. As the world’s only global musical instrument museum, MIM offers interactive and immersive exhibits to foster an appreciation of different cultures and their instruments. “A visit […]
...
Day & Night Air Conditioning, Heating and Plumbing

Why fall maintenance is important for your heating system and A/C

It’s easy to ignore your heater and air conditioner when they’re working but the moment something breaks, you will likely regret not keeping up with maintenance. After all, if something goes wrong, you may be stuck with a repair that will take longer and be more expensive than simple maintenance.
Constitutional experts concerned after Trump declares state of emergency