Three significant questions behind President Trump’s declaration of a national emergency to build a border wall have a single, surprising answer: Why did Congress in the National Emergencies Act (NEA) of 1976 delegate such broad and vague power to the president to declare national emergencies? Why wasn’t Congress more specific in defining the circumstances that constitute a national emergency? And why are the courts now going to have the final word in determining whether the president has properly invoked or abused the power the NEA gives him?
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Sixteen states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Virginia and Michigan) have filed suit against President Trump over his declaration of national emergency. The complaint is available here and below.
Congress and the courts will soon have the opportunity to respond to Donald Trump’s declaration that Congress’s failure to fund his wall at the level he demanded has resulted in a “national emergency” at the southern border. I and others have written about the weakness of the legal basis for this declaration.
From a detached legal perspective, Trump’s actions are not terribly controversial or worrisome. In context, they are.
When litigation comes, the resolution of the president's invocation of a national emergency and of 10 USC § 2808 will turn to no small extent on the concept of judicial deference.
President Trump announced in the Rose Garden on Feb. 15 that he is declaring a national emergency on the southern border, with the goal of obtaining an extra $6.5 billion to build a border wall.
As part of its effort to construct a border wall, the Trump administration has invoked a statutory delegation of authority signed into law by President Obama after the 2016 election.
The president signed spending legislation appropriating over a billion dollars for constructing a wall, along with a declaration of emergency to authorize an additional $6.5 billion.
As others have discussed on Lawfare, Congress recently has begun to feel its oats when it comes to U.S. foreign policy.
The executive branch has several ways of asserting exclusive presidential powers. Presidential signing statements, memoranda from the Office of Legal Counsel (OLC), legal briefs—these are well-studied tools of executive claims-staking. The use of these tools in the Trump administration has received plenty of coverage on this blog and others.