President Trump’s border wall has evolved from an ambitious campaign promise into a real opportunity to explore presidential versus Congressional authority to determine how the president spends Congressionally appropriated funds. The president’s arguments that he has the power to build the wall under either the National Emergencies Act or the funding provisions of 10 U.S.C. § 9705 or 10 U.S.C. § 284 lack merit—the cited non-emergency-tied statutes do not provide funding for the wall. The former authorizes the utilization of Treasury Forfeiture funds tied to specific law enforcement activities but excludes the ambitious and broad construction project the president proposed; the latter authorizes support only for counterdrug activities. The wall constitutes an unprecedented appropriation for a project without mooring in statutory language permitting only unspecified minor military construction projects.

Nor does The National Emergencies Act authorize the president to use Congressionally appropriated funds to build a wall that congress has expressly declined to fund. Congress enacted the National Emergencies Act after Executive abuses during the Vietnam War and to curb—not encourage—presidential usurpation of Congressional spending power based on emergency rationales. Although the National Emergencies Act imposes scant substantive and procedural limitations on a president’s ability to declare a national emergency and divert funds to address such an emergency, the Act does not allow the president to manufacture a basis for such a declaration where none exists. Even so, the chronology of events leading up to the emergency declaration demonstrates that the president’s invocation of an emergency is a ruse.

Additionally, the president’s Executive Order cites 10 U.S.C. § 2808, which requires the declaration of a national emergency under the National Emergencies Act. That Act authorizes a president to undertake “military construction projects” when he declares a national emergency in accordance with that Act. But Section 2808 only applies where a national emergency “requires the use of the armed forces” and only authorizes military construction projects “necessary to support such use of the armed forces.” The statutory language of 10 U.S.C. § 2808 makes it clear that effectuating immigration policy does not qualify as a military construction.

It has been long settled that presidential power must stem from an act of Congress or from the president’s own Article II powers. That dictum need not deprive a president of flexibility in the execution of powers delegated to her by Congress or in the execution of power delegated to her by the Constitution. Neither the foreign affairs power to recognize nations nor Commander in Chief authority to repel sudden attacks authorize the president to spend funds appropriated by Congress for other purposes. The Constitution did delegate to Congress the power to “provide for the common defense and general welfare” of the United States with the proviso that “no money shall be drawn from the Treasury, but in Consequence of Appropriations made by law.” That provision does not deprive Congress of the flexibility to delegate power to the president, but here Congress did not authorize these expenditures and expressly declined to provide funding for “the Wall” on two occasions. Thus, the president’s use of Congressionally appropriated funds to build “his Wall” is in conflict with Congress’s will and unlawful. So far, though lower courts have agreed with this result, a Supreme Court stay of the decision that enjoined the use of Defense Department funds in effect permits the president to finalize contracts and begin wall construction pending the resolution of the dispute on the merits in the Ninth Circuit and the Supreme Court. In its short decision that granted the stay, the Supreme Court signaled that if the case arrives via certiorari and the Court grants review, a majority will conclude that the Sierra Club plaintiffs have “no cause of action.” If that transpires, the favorable outcome for the president will turn on the nature of the litigants not the legality of the Wall construction project. For those concerned with the preservation of constitutional limitations on the Executive, “better half a loaf than none at all.”1

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