Funding A National Emergency

March 23, 2019 | Street Lawyer

[street_lawyer]

This discussion should illustrate why it is not possible to decide legal issues on what might be best under a given circumstance. Even in industry the Board of Directors are somewhat limited by rules and regulations and cannot always do what is expedient or even what is dictated by common sense.

It seems that a common sense solution would be to build a wall on the southern border since the current provisions have resulted in overwhelming the boarder policing efforts. As a result, millions of illegal aliens are free to enter the country never again to be apprehended. But Congress has enacted laws of the land that determine what can be done. The obvious solution would be for Congress to immediately pass legislation to resolve the “emergency”.

Arguably the law is so specific that it expresses the will of congress and if the President were to use funds found elsewhere to build a more elaborate wall, such action would be in violation of the separation of powers in that the President would in effect be legislating a new policy not approved by Congress.

The following statute might be a counter argument. Even if the ACC2019 expresses the current will of Congress, it has previously provided that during a national emergency "No law enacted after September 14, 1976, shall supersede this subchapter unless it does so in specific terms, referring to this subchapter, and declaring that the new law supersedes the provisions of this subchapter”. The terms are clear, but the application is not. Once again, the statute has never been interpreted by any court. When Congress wrote that “no law” shall “supersede this subchapter” was Congress referring only to the specific subchapter or was Congress referring to a broader scope which would include ACC2019? If it does include ACC2019 then Congress has missed the mark. If it wanted ACC2019 to “supersede” its prior authority given the President, it should have specifically referred to section 1621. ________________________________________________________________________________

§1621. Declaration of national emergency by President; publication in Federal Register; effect on other laws; superseding legislation (a) With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register. (b) Any provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect (1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and (2) only in accordance with this chapter. No law enacted after September 14, 1976, shall supersede this subchapter unless it does so in specific terms, referring to this subchapter, and declaring that the new law supersedes the provisions of this subchapter. 50 U.S.C. Sec. 1621 Declaration of national emergency by President; publication in Federal Register; effect on other laws; superseding legislation (United States Code (2019 Edition))

________________________________________________________________________________

Since the upcoming case by California and others against Trump to stop him from building the wall is unprecedented the outcome is somewhat unpredictable. The following statute is an additional authority Trump’s lawyers will most likely be using. You are the judge. Assume for the sake of this argument that the president has the power to declare this national emergency, is not violating the will of congress, and is not violating the separation of powers.

________________________________________________________________________________

§2808. Construction authority in the event of a declaration of war or national emergency (a) In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated. 10 U.S.C. Sec. 2808 Construction authority in the event of a declaration of war or national emergency (United States Code (2019 Edition))

______________________________________________________________________________

Trump’s Lawyers: The president can undertake military construction projects “without regard to any other provision of law”. Even if Plaintiffs argue that the CAA2019 does not allow the President to build a wall other than as provided in the act, Congress has spoken in earlier legislation that is currently enforceable which gives the the wall construction can be funded “within the total amount of funds that have been appropriated for military construction and family housing funds that have not been obligated. Since the statute provides that the only funds that cannot be used are funds that have been obligated for family housing. Such language could have been use with respect to other military appropriations, but such is not the case; a fortiori, even if funds have been “obligated” for other military construction projects, the funds would be available to build the wall that the President believes is necessary to meet the national emergency.

Plaintiff’s Lawyers: This emergency does not “require the use of the armed forces”, and the wall is not a “military construction project”. Nor is the wall necessary to “support such use of the armed forces”. Take for example the need to construct a runway to permit the Air Force to land planes. Without the runway the Air Force could not deploy army personnel and equipment to deal with a national emergency. In this example the the national emergency would “require the use of the armed forces” and it would most certainly by a “military construction project”. which would be necessary to “support the use of the armed forces”.

How would you apply the forgoing statutes to the current national emergency so as to either allow the use of military funds to build Trump’s wall or prevent the use of the fund and why? In other words which of the two arguments would you find to be most persuasive?

[street_lawyer]

reference to ACC2019 also known as Contenting Appropriations Act 2019