Can President Trump lawfully build the wall by declaring a national emergency? Harvard Law School faculty weigh in

Border Fence

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After signing a government funding bill that provides $1.375 billion for a barrier with Mexico, President Donald Trump announced a national emergency on Friday, Feb. 15, that would allow him to draw $8 billion from the just-passed bill and other existing federal accounts to build the wall.

Does the President have the legal authority to declare a national emergency, and order the military to build a wall between Mexico and the United States? Does he have the constitutional authority to spend money on a wall that Congress hasn’t specifically allocated?

Over the past several weeks, HLS scholars have shared their viewpoints, examined the political landscape and addressed the Constitutional issues that will now be litigated in federal courts across the country. Here is a selection of their articles and op-eds.

Four False Assumptions About Trump’s Wall Emergency

An op-ed by Cass SunsteinA full evaluation of the legality of President Donald Trump’s decision to declare a national emergency, and to order the building of a wall between the U.S. and Mexico, is best deferred until the appearance of a supporting memorandum from the Justice Department. But even now, four points are clear – and they are at risk of getting lost in the national discussion. 1. It is wrong to say that if Trump can declare a national emergency, he can necessarily order the Defense secretary to build a wall.

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Let’s say Trump declares a national emergency. What happens next?

An op-ed by Mark Tushnet:  If Congress doesn’t come up with an appropriations bill funding his beloved wall, can President Trump declare a national emergency and build the wall anyway? The answer depends on law and politics. The Constitution is the starting point. It says that the government — even the president — can’t spend money unless Congress passes a law authorizing the spending. Without a bill funding the wall, where can the president find the money? Several places, it turns out. The National Emergencies Act says that a presidential declaration of an emergency triggers a bunch of other provisions. One provision allows a president to spend already appropriated money for “military construction projects.” There’s a pot of about $10 billion available under that provision. Another allows him to divert the emergency money already appropriated for disaster relief.

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Tribe on national emergency: The only emergency is that Trump was a ‘bad negotiator’

Harvard Law School Professor, Laurence Tribe, joins MSNBC’s Katy Tur to discuss the legal process surrounding declaring a national emergency and what could happen next.

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Trump’s Emergency Powers Won’t Get Him a Wall

An op-ed by Cass Sunstein: Does President Donald Trump have the legal authority to declare a national emergency, and order the military to build a wall between Mexico and the United States? We are dealing with a novel question here, which means that any judgment has to have a degree of tentativeness. But the best answer appears to be no.

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Jack Goldsmith: defining “national emergency”

1/ The essential problem with the widespread notion that Trump is declaring an emergency when there is no emergency is this: — Jack Goldsmith (@jacklgoldsmith) February 15, 2019

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Democrats’ Compromise Strengthens Case for Trump’s Wall ‘Emergency’

An op-ed by Noah Feldman: In retrospect, it seems obvious that President Donald Trump would want to have his cake and eat it, too. That’s essentially what he’s doing Friday by both signing a government funding bill that provides $1.375 billion for a barrier with Mexico and also declaring a national emergency to allocate other federal funds for the same purpose.

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Republican Senators Embrace Their Power to Stop Trump’s Wall

An op-ed by Noah Feldman:  President Donald Trump’s persistent threat to declare a national emergency and build a wall along the Mexican border is giving new life to the separation of powers — exactly the opposite of his intention. In a development that would bring a smile to the Founding Fathers if they could see it, Republican senators have started to say that it’s a constitutional problem for the president to attempt to bypass Congress by using an emergency to fund something that Congress clearly hasn’t authorized. Republicans are realizing that if Trump can use an emergency to get around Congress, so too could Democratic presidents in the future. The senators are looking out for the interests of the Senate, which is to say their own interests.

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