Donald Trump asserted his intention to govern by fiat today when he said, “I have the absolute right” to declare a national emergency in order to get what I want — a wall on the US-Mex border. Well, slow down there, Mr. Tyrant Wannabe.
In a post to Just Security yesterday, Robert S. Taylor explained that threatening to “cry wolf” doesn’t mean that the Constitution of the United States is preemptorally suspended. There are conditions and restrictions under which spending money that has not been appropriated by Congress can be spent during a national emergency. They are defined by 10 U.S.C. § 2808 of the National Emergency Act.
In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. §§ 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated. emphasis mine
Let’s consider those highlighted words above.
Has Trump provided any evidence that Trump’s complaints about the humanitarian crisis at our southern border requires the use of armed forces? Didn’t he send a contingent of the military to the border late last year for what turned out to be an empty exercise, resented by military leadership as a misuse of force? Answers: No. And Yes.
Has Trump provided any evidence that the construction of a border wall is a military construction project? is there a sudden need for gun emplacements along the border? Will the wall also consist of Army barracks along those 2000+/- miles such that future American soldiers “stationed” there are housed? Are military radar installations, air fields, and other installations for use by soldiers intended to be contiguous to the see-through steel fence? Answers: No. And No. And No.
Since the Department of Homeland Security, not the Defense Department, is responsible for border security; since no one has hinted that the wall will be patrolled by the US Army; since the United States has never been threatened with, nor invaded by, an armed hostile force from any southern neighbor, there can not be any requirement for a military installation of any kind.
If logical reasoning is not enough to convince the reader of Trump’s specious claim that he “absolutely has the power” to declare a national emergency and use the American military to build his wall, consider Taylor’s following caution.
Accepting a presidential determination that there is a “national emergency” and that that emergency “requires the use of the armed forces” would probably not expose any DoD employee to substantial risk of criminal liability — but it is plausible that a new Administration and the courts would hold DoD officials accountable for their own determination of whether expenditures on a border wall would be “necessary to support such use of the armed forces.” The Acting Secretary and even some subordinate officials should carefully weigh their responsibilities under the law, and their potential criminal exposure, before proceeding to obligate funds appropriated to DoD on any border wall, even if the President should declare a national emergency and invoke § 2808.
In no way is declaring a national emergency for Trump’s intended purpose a legal unilateral decision. To assert that it is and to act on that assertion, and order the military to obey his tyrannical impulse may well be an impeachable offense. Inarguably, both the decision and its fulfillment require the consent of the Pentagon. Inarguably, that consent may pose a legal liability to the military leaders who accede to Trump’s megalomania. Now, the American military man would like to obey the orders of his C-i-C, but sometimes he must not.
Article 92 of the Universal Code of Military Justice (UCMJ) requires that soldiers must obey legal orders. I believe the Pentagon will be vigilant in seeking legal guidance from the current General Counsel for the DoD, Paul C. Ney, Jr., and possibly the person who will stand between We the People and Trump the Wannabe Tryant. America will then learn if Trump will be allowed to assume the title of Tyrant and shed the title of President of the United States.