President Trump’s Emergency Declaration Will Survive Lawsuits

According to Rep. Adam Smith (D-Wash.), the new Chairman of the House Armed Services Committee, President Donald Trump possesses the lawful authority to use emergency powers to fund and build a barrier at the border.

In response to an interview question about the legality of the president’s recent emergency declaration, Smith told host of ABC’s “This Week” George Stephanopoulos, “Unfortunately, the short answer is yes. There is a provision in law that says the president can declare an emergency. It’s been done a number of times…” The congressman added that the president would be the recipient of a court challenge.

The lawsuit avalanche has just begun. More than a dozen states are filing suits challenging the emergency declaration. A case in point is the recent one declared by California Attorney General Xavier Becerra.

It is simply a fact that under existing law the suits should eventually lose when the U.S. Supreme Court ultimately gets the case.

Even Democrats such as Smith and various liberal legal commentators have admitted that President Trump has the statutory authority to declare the border crisis to be a national emergency, and he will therefore be able to adequately fund a border barrier.

The declaration by a president of a national emergency is nothing new. There have been 58 national emergencies declared since the National Emergencies Act of 1976 (NEA) was signed into law. Currently, there are 31 active national emergencies in effect. President Bill Clinton declared 17, and President Barack Obama declared 13 of them.

National emergencies exist today in remote places such as Yemen, Lebanon, Zimbabwe, Sierra Leone, Burundi, Myanmar, and Somalia. The current national emergency declared by President Trump deals with a crisis occurring on the U.S. Southern border.

The NEA was originally passed to rein in the authority of the president to use emergency power. The law requires the occupant of the Oval Office to renew declarations of emergencies annually, and it gives Congress the potential ability to terminate a state of emergency. Congress has routinely renewed most past declared emergencies without raising meaningful objections or litigation.

In order to terminate President Trump’s recent declaration of emergency, Congress must pass a joint resolution and submit it to the president for his signature. If the president were to veto the resolution, as President Trump would most certainly be expected to do, Congress would have to come up with a veto-proof supermajority to end the state of the emergency.

When Congress, via the NEA, granted the president the power to declare a national emergency, it did not define the meaning of the phrase. The power of any president to declare a national emergency ends up being very broad.

President Trump’s authority to do so does not arise solely from the NEA, though, but also from the presidential power to protect the nation and control the orderly process of entry into the United States.

Supreme Court precedent recognizes the power of the executive branch to control the admission and exclusion of foreign nationals and generally views this authority as mostly unsusceptible to interference by courts.

The funding for a border barrier has already been given the blessing of Congress via enacted legislation that was signed into law. The law of the land, as stated in the Secure Fence Act of 2006, is that a border barrier shall be built along the U.S. Southern border.

Democrats are alleging that President Trump’s emergency declaration is seeking to use an emergency as a means to obtain what Congress had refused to authorize. However, Democrats are evidently more than willing to have the judicial branch step in to end a declared emergency, rather than follow a law that specifically states how Congress is mandated to carry out the process of overriding an emergency declaration.

There was no mass rush to file lawsuits and no cries of abuse of power on the part of Democrats when President Obama, after stating that he did not possess the legal authority to do so, proceeded to bypass Congress after it refused to pass immigration reform. He simply created with a stroke of his pen a program that fundamentally altered immigration laws.

The former president additionally funded some significant parts of the Affordable Care Act, after Congress had denied him such funding. And he also funded the undeclared war in Libya, after Congress had turned down his funding request.

In is clearly apparent that Democrats are not concerned with the law, but rather they are in opposition to any kind of border barrier of which President Trump might be in favor. This is simply due to the fact that President Trump made the wall a centerpiece promise during his 2016 presidential campaign. Democrats have been relishing in anything they believe might harm him politically, and they continue to do so.

The ugly reality is that the primary reason Democrats are seeking to stop the construction of any type of border barrier is that barriers work, and they do not want anything to be implemented that might curb the mass migration of their would-be voters.