Published by The Lawfare Institute
in Cooperation With
President Trump has announced that he will address the nation on Tuesday at 9:00pm Eastern Standard Time, in relation to his ambition to have
Mexico U.S. taxpayers fund a $5 billion border wall. Perhaps it will be no more than an effort at rhetorical positioning, as the White House and House Democrats struggle to assure the other is blamed for the mounting ill-effects of the shutdown. But it also is possible that the speech will be a platform for Trump to declare a formal emergency under the National Emergencies Act of 1976, and from that foundation to invoke certain statutory authorities that he might claim enable him to get the funding he needs by redirecting military construction funds.
In case that occurs, I’ve got a primer on what you need to know to track what is happening and how it is likely to play out. (And whether it occurs or not, I’ve also got a bingo card for you to use during his speech).
1. What statutes authorize redirection of funds during “national emergencies”?
The key statutes are 10 USC 2808 and 33 USC 2293. Section 2808 allows redirection of Department of Defense construction funds that have not yet been obligated, under certain conditions. Section 2293 does something similar with respect to the Army’s civil works construction funds.
2. What is the initial predicate for invoking these authorities?
Both statutes require either that there be a Declaration of War (not relevant here) or else a proper, formal declaration of “national emergency” in accordance with the 1976 National Emergencies Act (NEA).
3. Is it hard for a president to declare a national emergency?
Nope, not at all. The NEA makes no attempt to dictate conditions for when this can be done. It’s all about process, transparency and (easily-overcome) sunset rules. Thus, if President Trump wishes to state that the border is in a state of disarray or exposure such that it constitutes a national emergency under the NEA, he is pretty much free to do so. Check out this December 2017 overview of then-current national emergencies, for an illustration of when the power has been used in recent years.
4. Does any national emergency count, for purposes of Sections 2808 and 2293?
No, actually. Section 2808 only applies if the emergency in question “requires the use of the armed forces.” Section 2293 is similar but broader, requiring that the emergency in question “requires or may require use of the Armed Forces.”
If President Trump decides to pursue this approach, you can expect him to spend time in his speech dwelling on the military role as it relates to border control (no doubt including reference to the recent “caravan” related deployment in late 2018), in support of an assertion that the border is not only an emergency situation but one that specifically requires military involvement. Indeed, if he goes this route he likely will announce further deployments to correspond with it (and rhetorically buttress the case that this key statutory element is satisfied).
5. Assume there is the “right” kind of national emergency. Does any spending go, at that point?
No. Section 2808 allows only spending on “military construction projects,” and within that category it only allows spending on those projects that “are necessary to support such use of the armed forces” (that is, supporting the use of the armed forces in response to the declared emergency).
Would that apply here? President Trump presumably would assert that the border wall is a military fortification of sorts, and that it is key to supporting the military role in providing border security. And so the argument would turn on whether one accepts the predicate about the military’s role in the first instance. On one hand, it’s obvious that, in some contexts like an armed invasion, border control can be a military matter of the first order. On the other hand, that is not the situation we currently face (though we should expect rhetoric in the speech about terrorists) and not the way we largely have handled the southern border.
Clearly, much turns on who gets the final say on these questions. More on that in a moment. First, let’s conclude this question by looking at Section 2293.
Section 2293 applies only to allow spending on projects that are “essential to the national defense.” This perhaps sounds more demanding than the 2808 standard of necessity to support a military mission, but because it is so amorphous—and thus does not so clearly require a military-specific link—it might actually prove to be broader. Again, the framework leaves a considerable amount of wiggle room, thus making the identity of the final decisionmaker especially critical.
6. Can a decision to invoke either statute be challenged in court?
You’d need someone with standing. The House Democrats might take a shot at it, but legislative standing is difficult to establish to say the least. Other possible litigants with standing might include a landowner who faces eminent domain as a result of this (and there would be *MANY* of those), or perhaps someone who was going to receive a contract from the Defense Department had the military funds not been reprogrammed (as to them: reporters need to be all over the question of which projects won’t get funded thanks to massive redirection of DOD spending, should things go this direction).
7. Let’s assume someone does have standing. Won’t the courts just defer to the Commander-in-Chief on whether military necessity and national defense were sufficiently implicated?
In normal times, that is certainly the safe bet; there is a longstanding, robust “national security fact deference” tradition. Indeed, I wrote all about the underlying justifications for such deference (and their limitations) in this article. But we are not in normal times. The border litigation quickly would join the Travel Ban and Steel Tariffs litigations as instances in which a formal claim of national security justification would run up against serious skepticism about whether that justification was just a litigation smokescreen masking different reasons motivating the president. The outcome in Travel Ban suggests that it remains unwise to bet against the executive branch in such cases, of course, but one never knows these days.