//  2/21/19  //  Commentary

Last week, President Trump finally made good on his threats to declare a “national emergency” in order to secure funding for his so-called border wall.  The first lawsuits have already been filed, and more are surely on the way.  While many (including some conservatives) have recognized that there are serious legal problems with what the President is attempting to do here, some have suggested that no matter what the lower courts do, the Supreme Court may well save the President’s policy just like it saved his Muslim travel ban.  There’s just one problem with such a prediction: there are lots of differences between this case and that one.

When the President declared his “national emergency,” he was acting pursuant to the National Emergencies Act, a law that allows the President to invoke special powers that Congress has authorized the President to exercise, through different statutes, when a national emergency exists.  To try to get his border wall, the President invoked, for example, a law that authorizes “military construction projects.”

As many quickly pointed out, there are lots of potential legal problems here.  To start, there’s no national emergency.  As the President himself has said, he “didn’t need to do this.”  He could have built the “wall over a longer period of time,” but he’d simply “rather do it much faster.”  Indeed, in making this statement, he was only echoing his own Administration’s officials: at a Senate briefing just a couple of weeks earlier, the Administration’s top intelligence officials refused to say that there was a security crisis at the Southern border.  On top of that, other statutes he’s invoking impose their own requirements, and there’s reason to think those aren’t satisfied here either.

Yet despite the obvious legal problems, the President is counting on the Supreme Court to help him out.  As he said at his press conference, “we will possibly get a bad ruling, and then we will get another bad ruling, and then we will end up at the Supreme Court, and hopefully we will get a fair shake and win in the Supreme Court, just like the ban.”  Indeed, others have also suggested that the Supreme Court’s 5-4 ruling upholding the Administration’s travel ban provides reason for this confidence.  But if that’s what the President’s thinking, he should think again.

First, by the time the Supreme Court reviewed the travel ban, the ban was on its third iteration, and it was arguably narrower than the bans that preceded it.  In its opinion, the Court detailed the lengthy history of the ban, and it explained that the Proclamation under review “reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.”  It also emphasized changes that had been made since the first ban went into effect, noting that “since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been removed from the list of covered countries.”

There’s no reason to think that the President will have the same opportunity for do-overs here.  While his Administration will surely try to come up with figures to justify the “national emergency” declaration (notably, the President was unable to answer questions about what data supported the declaration at his press conference), he won’t be able to issue new, narrower declarations as he did with the travel ban.

Second, the President’s lawyers won’t be able to run away from the President’s own statements about the national emergency as readily as they could in the case of the travel ban.  In the travel ban case, the plaintiffs rightly focused on anti-Muslim comments made by Trump to show that ban was infected by anti-Muslim animus.  In response, the government emphasized that many of the statements were made when Trump was a candidate, and the Court’s majority too noted that “many of [the statements at issue] were made before the President took the oath of office.”  Whether or not that should have been relevant to the Court in its consideration of the travel ban, such a distinction won’t be an option here.

Third, the legal questions in the two cases are very different, and the Court’s textualists may find it difficult to get around clear textual limitations in the statutes the President has invoked.  As Justice Neil Gorsuch repeatedly points out, when interpreting a statute, one must always start with the text of the statute.  Indeed, Gorsuch, who was heralded by the business community when he was nominated to the Court, recently wrote an opinion for a unanimous Court in support of workers because he concluded that the text of the law required that result.

Here, the text of the laws at issue may be a real problem for the President.  One of the statutes that the President has invoked provides that “[i]n the event of a . . . declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense . . . may undertake military construction projects . . . that are necessary to support such use of the armed forces.”  Military construction is further defined to mean “construction, development, conversion, or extension of any kind carried out with respect to a military installation, whether to satisfy temporary or permanent requirements, or any acquisition of land or construction of a defense access road.” 

Even if one accepts that there’s a national emergency, the President still has to show that the national emergency “requires use of the armed forces,” that the building of the wall is a “military construction project[],” and that the military construction project is “necessary to support such use of the armed forces.”  And the President hasn’t even begun to explain how he can do that.    

Fourth, and finally, the Court’s conservatives, unfortunately, may have seen little danger in future Presidents acting on the precedent established by the Muslim travel ban, especially given a history of presidents having used their powers to limit entry at the border.  Here, by contrast, the Court may well worry about the real aggrandizement in presidential power that they would be permitting if they allowed the President to do what he seeks to do here.  Indeed, numerous Republicans urged the President not to declare a national emergency for fear that it would allow future Democratic Administrations to declare their own national emergencies to take action on climate change, gun violence, and other issues.  Senator Marco Rubio said, for example, “Today’s national emergency is border security. But a future president may use this exact same tactic to impose the Green New Deal.”

In sum, the President may be hopeful that this very conservative Court—with two Justices he appointed—will uphold his national emergency declaration, but he may well prove to be wrong.  There are lots of reasons to think that the Supreme Court may not save him this time.

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