In his capitulation to Speaker of the House Nancy Pelosi, Donald Trump has threatened to declare a state of emergency in order to divert funds to build his wall, if no wall funding is included in the funding bill to be presented in the next three weeks. Trump has been threatening this “emergency” for more than a month:
On Dec. 18, Trump tweeted, “Because of the tremendous dangers at the Border, including large scale criminal and drug inflow, the United States Military will build the Wall!” On Jan. 4, the president acknowledged the possibility of using emergency powers to fund the wall, saying, “We can call a national emergency because of the security of our country … I haven't done it. I may do it … We can call a national emergency and build it very quickly.” On Jan. 6, he told reporters, “I may declare a national emergency dependent on what's going to happen over the next few days."
Could a declaration of a state of emergency give Trump the cover to cave again in three weeks? Maybe. But would it be legal? In terms of the statutory analysis, this article is a good primer. But I believe the real obstacle is constitutional.
The controlling case in my view is Youngstown Sheet & Tube Co. v. Sawyer, also known as the Steel Seizure cases. As described in the case syllabus:
To avert a nationwide strike of steel workers in April 1952, which he believed would jeopardize national defense, the President issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills. The Order was not based upon any specific statutory authority, but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces. The Secretary issued an order seizing the steel mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions. The President promptly reported these events to Congress; but Congress took no action. It had provided other methods of dealing with such situations, and had refused to authorize governmental seizures of property to settle labor disputes. The steel companies sued the Secretary in a Federal District Court, praying for a declaratory judgment and injunctive relief. The District Court issued a preliminary injunction, which the Court of Appeals stayed.
This is, of course, a very famous case, and was central to the discussion of President George W. Bush’s use of warrantless wiretapping. It is the concurrence in Youngstown issued by Justice Jackson that has been embraced as the best expression of the limits of the president’s power as commander in chief:
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. [n2] In these circumstances, [p636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, [p637] as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law. [n3]
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [p638] the Congress from acting upon the subject. [n4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
Applying this standard, Justice Jackson considered President Truman’s wartime invocation of commander in chief power (the Korean War was ongoing) as follows:
Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which were made in relation, and must be confined, to this category. [n5] [p639]
Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class, because Congress has not left seizure of private property an open field, but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Government; [n6] another, condemnation of facilities, including temporary use under the power of eminent domain. [n7] The third is applicable where it is the general economy of the country that is to be protected, rather than exclusive governmental interests. [n8] None of these were invoked. In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties. [p640]
This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Thus, this Court's first review of such seizures occurs under circumstances which leave presidential power most vulnerable to attack and in the least favorable of possible constitutional postures.
It is under the third “lowest ebb” prong that Truman’s seizure of the vital steel industry during wartime was considered by Jackson. Clearly any argument Trump makes for his silly wall cannot be superior to Truman’s invocation of commander in chief power during an actual war, involving an actual vital wartime industry. Justice Jackson then applied the “lowest ebb” analysis:
Assuming that we are in a war ... does that empower the Commander in Chief to seize industries he thinks necessary to supply our army? The Constitution expressly places in Congress power "to raise and support Armies" and "to provide and maintain a Navy." (Emphasis supplied.) This certainly lays upon Congress primary responsibility for supplying the armed forces. Congress alone controls the raising of revenues and their appropriation, and may determine in what manner and by what means they shall be spent for military and naval procurement. I suppose no one would doubt that Congress can take over war supply as a Government enterprise. On the other hand, if Congress sees fit to rely on free private enterprise collectively bargaining with free labor for support and maintenance of our armed forces, can the Executive, because of lawful disagreements incidental to that process, seize the facility for operation upon Government-imposed terms? [My emphasis]
Trump has expressly stated that the issue is that Congress will not appropriate monies for his wall. But, as Justice Jackson wrote, “Congress alone controls the raising of revenues and their appropriation.” Trump’s “emergency” is the Constitution itself. The separation of powers. The existence of co-equal branches. The fact the president is not a king. The word “emergency” does not create special presidential powers. Justice Jackson wrote:
The appeal ... that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although [p650] it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, [n18] they made no express provision for exercise of extraordinary authority because of a crisis. [n19] I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so, although many modern nations have forthrightly recognized that war and economic crises may upset the normal balance between liberty and authority.
Justice Jackson ends with this admonition to Congress:
I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, [n26] at the expense of Congress.
But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them." We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers. [My emphasis]
President Trump’s declaration of a state of emergency because the Congress will not do his bidding would be plainly unconstitutional. Trump’s state of emergency is the existence of the Constitution itself. And the fact that he is not a dictator.
The courts and the Congress must not countenance any such dictatorial act.