Trump Has a Strong Legal Argument That He Can Declare National Emergency at Border

President Donald Trump has asked Congress for $5.7 billion to build a wall along the southern border. He has said that, if necessary, he may declare a “national emergency” and act unilaterally, and that he has the authority to do so.

As is the case any time a president attempts to circumvent Congress and act unilaterally, there is the legal question of whether he can do so and the normative question of whether he should do so. This article addresses only the legal question at hand.

In brief, Trump has a strong argument to make that he, in fact, has the authority to act unilaterally. But in order to explain why, let me lay out the relevant facts.

Groundwork for National Emergency Claim

In his prime-time address Tuesday night and through other information that has been disseminated by the White House, the president began to lay the groundwork for declaring a national emergency.

Here are some of the points the administration has been making for its case:

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• Arguing that the flow of drugs across the border has dramatically increased, claiming that 90 percent of illegal drugs entering our country come across the southern border and that during the last fiscal year, there was a 73 percent increase in fentanyl (amounting to 2,400 pounds) and a 38 percent increase in methamphetamine and heroin coming over the southern border.
• Citing profits being made by “coyotes” who carry migrants across the border as well as the horrific conditions to which those migrants are subjected. The administration claims that criminal organizations derive $2.5 billion in profits every year from smuggling migrants into the U.S., and that 68.3 percent of all migrants report having been subjected to an act of violence and 31 percent of female migrants report having been sexually assaulted while en route.
• Highlighting the fact that during the last fiscal year, Customs and Border Protection agents stopped 17,000 adults at the southern border who had criminal records, and that Immigration and Customs Enforcement agents apprehended 6,000 known or suspected gang members at the border.
• Pointing to the mayhem wrought by many of the illegal aliens who successfully entered our country. In his speech, the president noted that over the last two years, 266,000 illegal immigrants have been charged or convicted of 100,000 assaults, 30,000 sex crimes, and 4,000 murders.
• Arguing that with caravans of people arriving at the border, the system is simply overwhelmed. The administration is claiming that during the last fiscal year, 60,000 unaccompanied children and 161,000 family units arrived at the border; that 98 percent of family units and unaccompanied alien children are never removed; that there has been a 2,000 percent increase in asylum claims over the last five years; and that immigration courts currently have a backlog of nearly 800,000 cases.
• Noting that many Democrats who now oppose building a wall once supported the concept. Indeed, in 2006, 26 Democratic senators—including Chuck Schumer, Dianne Feinstein, Hillary Clinton, Barack Obama, and Joe Biden—voted in favor of the Secure Fence Act, which empowered the Department of Homeland Security to build “physical infrastructure enhancements” along the border. Congress, however, has never appropriated the funds for this purpose.

History of National Emergencies

Should the president decide to act unilaterally, he would invoke the National Emergencies Act, a post-Watergate reform statute that was enacted in 1976 and signed into law by President Gerald Ford.

Prior to the enactment of the National Emergencies Act, many presidents, relying on their implied constitutional authority, had simply declared ...

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