Though Trump himself suggested there is no real emergency, courts are unlikely to second-guess a president’s broad leeway
Many legal analysts who watched Donald Trump declare a national emergency over immigration on Friday thought the president had weak legal grounds for doing so. In particular, many thought Trump hurt his own case by admitting, right there in the White House Rose Garden: “I didn’t need to do this, but I’d rather do it much faster.”
“This quote should be the first sentence of the first paragraph of every complaint filed this afternoon,” tweeted George Conway, a top Washington lawyer and the husband of Trump aide Kellyanne Conway.
“Yup,” replied Preet Bharara, the former US attorney.
But legal analysts from across the political spectrum have now said that line of argument might not be as strong as it appears on its face, and that the Trump administration might have a better case for the emergency declaration than it seems.
“The legality of Trump’s decision will probably turn on highly technical provisions involving the use of funds for military construction projects,” wrote Harvard law professor Cass Sunstein, a former White House official under Barack Obama.
Legal challenges to Trump’s emergency declaration quickly materialized, with three Texas landowners and an environmental group suing on Friday, 16 state attorneys general suing on Monday and Democrats in Congress promising at least one lawsuit to come.
As predicted, the lawsuits indeed quoted Trump, with the states’ coalition arguing that “the president candidly admitted that the emergency declaration reflected his personal preference to construct the wall more quickly, rather than an actual urgent need for it to be built immediately”.
But courts are not likely to rule, Sunstein wrote, on whether the underlying immigration crisis as described by Trump qualifies as an “emergency,” which is not defined in the 1976 National Emergencies Act invoked by Trump in making his declaration.
Jack Goldsmith, Sunstein’s colleague at Harvard and a veteran of the justice department under George W Bush, said presidents have broad leeway in declaring emergencies.
“‘Emergency’ isn’t typically defined in relevant law, presidents have always had discretion to decide if there’s an emergency, and they’ve often declared emergencies under circumstances short of necessity, to address a real problem but not an emergency as understood in common parlance,” Goldsmith tweeted.
According to a running list of national emergency declarations compiled by the Brennan Center for Justice, presidents have declared emergencies in 59 instances since the 1976 law was enacted. Obama made 12 such declarations, including one declaring a flu epidemic and 11 sanctioning individuals tied to foreign conflicts.
“So as we have seen many times in the last two years, Trump is building on very broad congressional delegations and past presidential practices,” Goldsmith wrote. “But Trump makes what he is doing seem, and in reality be, much worse because he suggests openly that there is no real emergency (‘I didn’t need to do this’), instead of (as past presidents did) hiding the ball or using more effective rhetoric in a less divisive context.”
University of Texas law professor Robert Chesney, writing for the Lawfare blog, also expected the courts to give the president broad leeway. “Basically, there is a robust tradition of courts declining to second-guess the factual or quasi-factual determinations of a president on matters relating to national security and military affairs,” Chesney wrote, “and all the more so as those determinations shade into policy judgment or take on a predictive aspect.”
But the courts could rule on a narrow question that would undercut Trump, Sunstein wrote, such as whether the border wall qualifies as a “military construction project”. If the answer is no, the legal reasoning advanced by the Trump administration could fold.
In its reasoning, the White House invoked a a US law stating that under a declared national emergency (or a declaration of war), the secretary of defense can undertake “military construction projects … not otherwise authorized by law.”
The White House also invoked a second law that authorized the secretary of defense to support the “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States”.
South Texas college of law professor Josh Blackman, a conservative analyst, wrote that Congress had clearly ceded to the president the power “to shift appropriations around to fund that construction” and that Trump’s invocation of the the drug-smuggling law “reflects, once again, an instance where he relies on express delegations of power to accomplish awful policies”.
In a point echoed by Sunstein, University of Texas law professor Steve Vladeck said the fate of Trump’s emergency declaration likely rests on a relatively narrow reading of law.
“The legal dispute won’t be over whether there really is an ‘emergency’,” Vladeck tweeted. “It will be over whether the statutory authorities an emergency declaration unlocks actually authorize wall construction.”