A Reader Has Legal Advice On How To Declare An Emergency
January 22, 2019, 11:26 PM
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Re: James Kirkpatrick's article Negotiate From Strength, President Trump! Some Ways To Change The Equation On Border Showdown

From: Fabrizio Evola [Email him]

As the political dispute regarding the Shutdown continues, President Trump and his team of advisors have indicated that they may declare a national emergency and utilize the provisions of the National Emergencies Act (NEA) to get the Wall built. While I believe that President Trump would ultimately prevail in the Courts under this strategy, a better course of action would be to declare a national emergency under Public Law 85-804, codified at 50 U.S.C. Section 1431-1435. This law is far more expansive, and likely more resistant to an inevitable Court challenge by the Left. It is specifically exempted from the NEA. See 50 U.S.C. Section 1651(a)(4).

Under this law, "[t]he President may authorize any department or agency of the Government which exercises functions in connection with the national defense . . . to enter into contracts or into amendments or modifications of contracts heretofore or hereafter made and to make advance payments thereon, without regard to other provisions of the law relating to the making, performance, amendment, or modification of contracts, whenever he deems that such action would facilitate the national defense." See 50 U.S.C. Section 1431. The President, however, may not "obligate the United States in any amount in excess of $25,000,000 unless the Committees on Armed Services of the Senate and House of Representatives have been notified in writing of such proposed obligation and 60 days of continuous session of Congress have expired following the date on which such notice was transmitted to such Committees." See 50 U.S.C. Section 1431. 

Essentially, the President just has to declare that a national emergency exists under this law, connect it to the "national defense," notify the proper Congressional Committees, and then he will be permitted to enter into agreements with private contractors to get the Wall built. Unlike the NEA, the President will not have to shuffle money around from different departments. He will have the authority to make new agreements, and then bind the Federal Government to spend whatever money he deems appropriate. 

The restrictions on the President's authority are fairly limited. The law "shall be effective only during a national emergency declared by Congress or the President and for six months after the termination thereof or until such earlier time as Congress, by concurrent resolution, may designate." 50 U.S.C. Section 1435. A concurrent resolution has to pass both houses of Congress, and the GOP can prevent that from happening since they currently control the Senate. Under the plain reading of the statute, this national emergency could last to the end of Trump's first term, or even his second if he is re-elected. That should be more than enough time to get the Wall built and pay the necessary contractors. 

The Left will almost certainly mount a Court challenge, but it will most likely fail. This law was first passed in 1958 during the Cold War, and it was designed to give the President immense authority in matters regarding national defense. Courts have traditionally been very deferential to the President when it comes to matters of national security, particularly when there has been Congressional authorization. President Obama actually used this law in 2014 to provide civil protection to contractors who were working with the United States Agency for International Development (USAID) to stop the spread of Ebola in Africa. President Obama wrote that this amounted to a national emergency and that it "would facilitate the national defense." 

It is hard to imagine that a Court would determine that preventing the flow of drugs and illegal aliens is not facilitating the national defense, when a humanitarian mission in Africa would be advancing it. This is a fight that President Trump should win, but he needs to act quickly to fulfill his campaign promise.

See earlier letters from the same reader.