Why He Cannot Invoke the Emergencies Act to Build a Wall

Drawing by Nathaniel St. Clair

The more President Trump changes his mind about declaring a national emergency to build his wall the less likely it is that he has the authority to do it.  But even if he had declared a national emergency immediately, it is unlikely the Constitution or congressional statute allows him to do it.  That is perhaps why Trump has not invoke emergency powers to build the wall–basic principles of American law suggest he lacks the authority to do it.

The US Constitution is a power conferring document.  There are no extra-constitutional powers.  Before the president or any branch of the national government does something it needs to trace authority back to the explicit text of the Constitution or the power must be necessarily implied.  In the case of the president, his authority comes from Article II of the Constitution, or he may be delegated some additional authority to him from Congress via Article I.

Under Article II section 1, executive power is vested in the president.  Under Article II, section 3, the president shall take care that the laws are faithfully executed.  Through either of these clauses the president can issue an executive order and declare a national emergency, but what does that really mean?  Does it mean presidents can ignore existing law or do whatever they want for whatever reason?  Doubtful.  President’s cannot manufacture an emergency and then invoke undefined  powers to ignore the law or the Constitution;…

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