President Donald Trump has said that he can declare a national emergency and order his border wall to be built. He’s wrong. The US Constitution doesn’t contain any national emergency provision that would allow the president to spend money for purposes not allocated by Congress. And it’s clearer than clear that Congress not only hasn’t authorized money for a wall along the border with Mexico but also doesn’t intend to do so.
The upshot is that any attempt by Trump to get around Congress by using invented emergency powers would violate the Constitution. It almost certainly would be blocked by the courts. And it would constitute a high crime and misdemeanor qualifying him for impeachment.
Of course, Trump may not care. He’s established a pattern of taking clearly unconstitutional action, waiting for the courts to block it, and winning (at least in his estimation) political points with his Republican base regardless. It would be perfectly within that pattern for Trump to announce that he can do whatever he wants in a
national emergency. He is expected to lay the groundwork for such a declaration in a prime-time address. But we should recognise any such action for what it is: a usurpation of clear constitutional commands for the purposes of political grandstanding.
The Constitution does contain an emergency powers clause. Article I, Section 9 allows for the suspension of habeas corpus in cases of rebellion or invasion.
From the fact that the suspension clause exists, you can deduce something very basic to the US constitutional system: There are no other inherent constitutional emergency powers. Yes, the president is commander in chief, with the power to defend the United States — but he can only do that with an army authorised and paid for by Congress.
That means any emergency power the president might have must come directly from Congress. The National Emergencies Act of 1976 is Congress’s last word on what emergency powers it gives the president. That law was enacted after Senate staffers’ research revealed some 470 emergency provisions across the whole of the US Code.
Those emergency powers are unsurprisingly varied and broad. But none of them can displace the Constitution itself. And it is the Constitution that says the Congress appropriates money and the executive spends it.
If there were some statutory provision saying that in an emergency the president could do things Congress otherwise has told him he can’t do, that would pose an intriguing constitutional question: Which law would prevail in a conflict between one saying the president could do something and another saying he couldn’t?
But I know of no law that says the president can spend money on purposes that Congress doesn’t want him to spend it on.
It’s crucial to this analysis that we know for certain that Congress doesn’t want the president to spend money on his wall. The prior Congress chose not to give this funding to Trump. And the current Congress has made the same choice.
That makes spending on a wall very different from discretionary expenditures that past presidents have sometimes made without direct authorisation.
It’s one thing for the president to allocate discretionary funds creatively where Congress hasn’t told him not to do it. It’s quite another for the president directly to defy Congress’s will by spending money on a project Congress has repeatedly refused to authorize.
The classic Supreme Court case about conflicts between the president and Congress is Youngstown Sheet and Tube Co. v. Sawyer, often called the steel seizure case. The court held that President Harry Truman lacked the authority to seize the nation’s steel mills as a wartime emergency measure. Justice Robert Jackson wrote the concurring opinion that has come to be adopted by the Supreme Court as binding precedent.
Jackson explained that “when the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” Note the word “implied.” The reason Jackson considered that Congress had implied that Truman could not act was that it had passed other laws that allowed various presidential emergency measures to obtain necessary production — but had not embraced seizures of Truman’s type.
Congress has been even clearer about not appropriating money for Trump’s border wall than it was about not allowing Truman’s seizure of the steel plants.
Invoking emergency powers therefore isn’t a plausible way for Trump to fund the wall that Congress has refused. And using discretionary funds even without any claim of emergency power is foreclosed by Congress’s clear intent not to fund the wall.
In the end, it should be simple: The separation of powers bars the president from making an expenditure on his own that Congress has refused to authorise. There’s no escape clause in the Constitution.
If Trump defies the Constitution, he’s defying the rule of law itself. The courts should stop him, protecting the separation of powers.
And Congress should start thinking seriously about exercising its power to enforce the Constitution against a president who openly violates it — the power of impeachment.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to US Supreme Court Justice David Souter
His books include “The Three Lives of James Madison: Genius, Partisan, President”