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There has been much in the news lately concerning the President's use of emergency power to shift budgeted funds from one purpose to another, namely, construction of a barrier along the southern border of the U.S. Does the President have inherent constitutional authority to declare an emergency and move the funds? Has Congress otherwise given the President statutory authority to do so, and, if so, has that authority been granted constitutionally? These and other questions will be debated on our Teleforum conference call.
Professor John C. Yoo, Emanuel Heller Professor of Law and Director of the Korea Law Center, the California Constitution Center, and Public Law and Policy Program, University of California at Berkeley School of Law
David A. French, Senior Fellow, National Review Institute, and Senior Writer, National Review
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Federalism & Separation of Powers Practice Group, was recorded on Thursday, January 31, 2019, during a live teleforum conference call held exclusively for Federalist Society members
Dean Reuter: Welcome to the practice group’s teleforum conference call as today we discuss emergency executive power and authority. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups here at the Federalist Society. We’re very pleased to welcome two guests to our teleforum today. Professor John C. Yoo is the Emanuel Heller Professor of Law and Director of the Korea Law Center, California Constitution Center, and Public Law and Policy Program at the University of California at Berkeley School of Law.
We’re also joined by David French. He’s a Senior Fellow at the National Review Institute and a Senior Writer at National Review. And we’re here today, of course, to discuss the President’s inherent, or statutory, authority to declare a national emergency. The President is, once again, making noise or promising to invoke emergency power to move funds, federal funds, to build a wall on the border of the U.S. and Mexico, the United States’ southern border. So that’s where we stand today. I think there are several questions here to tee up.
One, whether the President has inherent authority to do that. If not, does the power exist for the President? Has it been delegated by Congress, perhaps under the National Emergencies Act? And even if it has been delegated under the National Emergencies Act, even if the president’s empowered that way, is that act constitutional? So with that, that’s all I’ll say to tee things up. We’re going to get opening remarks from each of our experts in order. John Yoo first; then, David French. Five to ten minutes or so each, and maybe some back and forth then. But as always, we’ll be looking to the audience for questions, so please have those in mind for when we get to that portion of the program. With that, Professor Yoo, the floor is yours.
Prof. John C. Yoo: Dean, thank you, and I want to thank the Federalist Society for inviting us to debate this extremely important and timely subject, given that Washington Post carried a story today saying President Trump expects to issue a declaration of national emergency in order to build a border wall along our southern border with Mexico. And I want to say I’m really looking forward to discussing this with my friend David French, who I only see when we are afloat in international waters on the National Review cruise. I’m rarely seen on American soil, so it's going to be a pleasure to discuss this with David. And usually, I think we agree on 90 percent of things in the world, but this is in that basket of 10 percent of things we probably disagree about.
So I think there’s a statutory argument and a constitutional argument that would justify President Trump’s plans, and I think, mostly, this is a statutory question. The statutory question is, A) can the President issue a declaration of national emergency under the National Emergencies Act? And then, B) what statutory authorizations or powers does the declaration allot?
So the first question on national emergencies, there’s something called the National Emergencies Act, passed in 1978. Congress sought to terminate what had been, up to that point, sort of unilateral presidential declarations of emergency, some of which had been going on for many decades, and to establish really a process for the declaration of emergencies. The interesting thing about this statute is that it doesn’t define what a national emergency is. It doesn’t place any sort of conditions on it. All it really requires is that the President declare them publicly and notify Congress.
So I think we could have an interesting argument about whether -- what kind of event is a national emergency. Does it have to be something that occurs, like a hurricane or an invasion, something that occurs on a specific date and time? Or is it something that can grow, can be a process, gradually growing and culminating in some kind of harm? But the statute that Congress passed doesn’t draw any distinctions, and so I don’t think that Congress sought in that statute, at least by the text, to constrain the President’s practices and authority here. Furthermore, no court, as far as I know, the Supreme Court has never overruled a presidential finding of a national emergency under the statute.
In fact, every time it’s confronted it, after 1978, it’s upheld it, most famously in Dames & Moore v. Regan where the Court upheld President Carter, then Reagan’s, national emergency about the Iranian hostage crisis. So I think the more difficult question for the statutory part of this is what powers are unlocked? If there’s a declaration of a national emergency, can the President, essentially, reprogram appropriated funds from other purposes towards the building of a border wall? I think there’s several statutes that do that, but the primary one is 10 U.S.C. § 2808.
And that statute says, “In the event of a declaration of war or the declaration [by the President of a national emergency] that requires the use of the armed forces,” I think that’s the key phrase. Then it says, “the Secretary of Defense [can], without regard to [any] other provision of law . . . undertake military construction projects.” And then here’s another key phrase: “that are necessary to support such use of the armed forces.” And so as I understand it—I haven’t looked at the most recent figures—there’s quite a bit of money still sitting in the military construction budget. And 10 U.S.C. § 2808 seems, to me, to allow its use. The interesting question is does the national emergency here require the use of the armed forces, and would the building of a wall be in support? I would think so.
One reason is, of course, the armed forces are already at the border by order of the President. It seems to satisfy that statutory requirement. And then it seems to me, although I think this is in the judgement of the President and courts would defer to this, it seems to me that our President could say, “I’d like to build a wall along that border in support of those armed forces. In fact, if I get to build the wall, it reduces the need for larger troop deployments and actually could reduce the level of armed forces that we need at the border.”
The second larger point -- so that was the statutory. Let me just close quickly with a larger constitutional argument. That this is, to me, it seems exactly why the framers created a president. They didn’t think that legislatures, which were big and unruly and have problems making decisions, should be the body of the government that should respond to these kinds of crises, emergencies, and events. That’s why the framers, particularly Alexander Hamilton, defended during the constitutional ratification creating a president, an Executive Branch, whose powers were concentrated in one person rather than two people, or a committee. I think actually, when you look at the language that Hamilton is famous for, that the President has executive power so that he could act with speed, and decision, and secrecy, and, famously, dispatch, it’s exactly for moments like these when things come up that the Legislature cannot handle, or isn’t ready for, or doesn’t anticipate properly.
And the President can act quickly in order to protect the nation’s security here, the nation’s territory. And, here, the statutory structure, rather than, I think, undermining the President’s abilities, actually, if anything, is seeking to amplify and enhance them. So I think it sounds like when next week, or in two weeks, President Trump issues a national emergency declaration and then he transfers these funds, politically, everybody will like it because Trump will get a large part of his wall. Congress will get to criticize him for it and then move on to other business. And I think, in the end, the courts will defer and not second guess, substitute their judgement for what is the national emergency. Thanks a lot.
Dean Reuter: David French, please go right ahead.
David A. French: Well, first, John, I appreciate any time we get to spend together, even on the phone or on the high seas, but you’re not supposed to admit that we’re cruise conservative. That’s out of fashion now. I hope the listeners don’t hold that against us. I’m going to agree and then disagree. I’m going to agree on the first point Professor Yoo shared that, as the statue is written, I do believe it’s a very broadly written statute. The National Emergencies Act is a very broadly written statute. I do believe that statute is broad enough to allow the President to declare a national emergency at the border. But declaring a national emergency, of course, doesn’t unlock unlimited powers. It unlocks limited powers, and those powers are limited by specific statutes. John spoke about one, and let’s talk about that one first. And then we’ll move to a second one.
John spoke about 10 U.S.C. § 2808, and there are two elements there that I think are key. One is that the national emergency is not just a national emergency that’s declared it. It has to be a national emergency that, quote, "requires . . . of the armed forces." And the key word there is “requires.” I’m beginning to get a little bit of DOPA and DOCA déjà vu because what you would have in the instance of a national emergency declaration here, if the President is arguing that it requires used of the armed forces, what he’s going to be doing is defying a comprehensive, statutorily created system of border enforcement that is thoroughly civilian.
The ICE, border patrol, border security is a civilian mission. The commission of -- a border crossing by illegal immigrants is not considered under international or domestic law to be an act of war or international armed conflict in any way. It is a misdemeanor, a felony in certain circumstances. Border security with an allied nation is a thoroughly civilian mission. It’s not just a civilian mission by practice; it’s a civilian mission by statute. And so to argue that this requires the use of the armed forces, with the key word being “requires,” I think is a stretch. The second element of this is is that under that statute, what’s unlocked is military construction that is, quote, "necessary to support such use of the armed forces."
Now, one of the things I’ve done in my past is I’ve been a JAG attorney, JAG officer in the United States Army, and I’m pretty familiar with the fiscal law and the way in which terms are used to describe military construction projects. And as a general matter, that kind of language applies to structures that are specifically to be used by the military. Now, even under a national emergency, I don’t believe that Trump’s intent would be to create 240 miles of additional wall manned by soldiers. These would be 240 miles of additional wall that would be, then, returned to civilian use, that would be used by civilians. So again, this is something, I think, under both of those prongs, it does not require the use of the armed forces, and the wall would be a civilian use structure. So I think that that statute doesn’t help the President.
The next statute, which has a little bit more flexibility on the front end, but less flexibility on the back end is 33 U.S.C. § 2293. And it has more flexibility in that it says, if there’s a national emergency "that requires or may require use of the armed forces," then the Secretary may divert funds from, essentially, one form of authorized project to another, "authorized civil work, military construction or civil defense project that are essential to the national defense.” In other words, this is a little broader because it allows you to create things that are not just for the use of the armed forces but are essential to the national defense. But those are two limitations. One, it has to be authorized, and there’s no authorization for the additional 240 miles of planned border wall. And the idea that it’s essential to the national defense, key words “essential” and “national defense” I think are quite a stretch.
Again, Mexico is an allied nation. There’s no state of armed conflict under international law. The cross-border activity is a matter of criminal activity. It’s not a hostile act under international law. And so, in that circumstance, to say that this thoroughly, statutorily created civilian mission is that the continuance of that by the military is essential to national defense, is, again, I think, quite a stretch from the intent in plain language here. But it’s one thing -- and this is where I’d say my argument is most vulnerable. I think my argument is strongest if you’re just looking at the text and intent of the statute. I think it gets a little bit weaker, and Professor Yoo’s argument gets stronger, when you ask the question, even if a court, a judge, in theory, agreed with me, would the Court find this to be justiciable?
In other words, would a court say, “Well, I’m just not going to -- regardless of what I think about the merits of the national emergency declaration, this is just not what a court should get into. A court should not interfere with the President’s determinations”? And this is where I think the Youngstown Steel case is still interesting, even though it was a constitutional case and not a case of statutory construction.
In the Youngstown Steel, the backdrop was a potential halt in steel production in the middle of the Korean War. Now, to say that that is an emergency, as far as the orders and magnitude of emergency compared to the misdemeanors and felonies on the border, there’s no comparison. We were engaged in a land war in Asia against the million strong Chinese army, supplemented by several hundred thousand North Koreans. We were consuming steel at a terrifying rate. We were having thousands of casualties a month. It was a critical part of the overall national security effort to blunt communist expansion. I mean, this was a real war. And I don’t need to explain to anybody how indispensable steel is to the commitment of American national resources in a war effort. And so even in that circumstance, in a land war in Asia, consuming steel at a terrifying rate against a million-strong, enemy army, the Supreme Court said, "No. No, Truman’s Commander-in-Chief power is not broad enough to encompass the ability to seize the means of production."
Here, we don’t have any armed conflict. We don’t have a theater of armed conflict on the southern border. We have a theater of misdemeanors and felonies. And to then pull that into the national defense, I think, is something that I believe the Supreme Court will be reluctant to do. So Professor Yoo may be right. I think his strongest point would be will the courts, regardless of what the statute actually says, just defer to the President’s interpretation? But I think it shouldn’t and ultimately won’t.
Dean Reuter: Very good. Well, thanks to both of you. I do want to have a little back and forth here before we turn to the audience for questions. So there’s a lot on the table. Professor Yoo, I don’t know if you want to pick something in particular to respond to, but let me give you a few minutes to respond.
Prof. John C. Yoo: Yeah. Great. Thanks, David, and thanks, Dean. This is really good and really identifying the real points of difference for people who, you know, are -- I think David and I are probably both originalists and constitutionalists, so we’re not swayed by sort of a progressive arguments of just let the text go where we feel like it, rather than being bound by the text.
So anyway, two points, one on what is border security, in terms of function, and the second, this question of Youngstown judicial deference and justiciability. David raised a very interesting argument that border security is really a civilian law enforcement function, and that, therefore, the military construction statutes would be inapplicable because the military itself is really barred now by acting to engage in the enforcement of the immigration laws.
So I think this is a hard question. I would say that border security could be either/or, depending on Congress and the President, and I don’t think, in my view, that the idea that border security could be a military function is foreclosed. Of course, border security and sort of guarding the territorial integrity of the nation was the original and primary function of our armed forces. You think about all the wars with the Indian tribes in the west at the beginning of the country and then, of course, our wars against Canada. I wish we’d won. Unfortunately, we lost those. I don’t know how we lost to the Canadians. We’re still trying to figure that one out. And then our wars on the southern border with Mexico. The armed forces were the primary branch of the government that was in charge of border security.
Second, I think there’s a division of authority under the Posse Comitatus Act, which is this law passed after the Civil War that forbids a military from engaging in the enforcement of the civilian laws. Although, it does allow for their domestic operation in a military role but also if constitutionally required. And here, I think, what happens is that the military deployed on the southern border is not engaged in law enforcement in the sense they’re not trying to catch and arrest and deport illegal aliens. I think the President could still say that’s up to ICE and a domestic agent law enforcement agency, but that control of the border itself is still a military function, even if it’s with regard to a country with which we are not currently at war. And I think that’s sort of contemplated by the statutes since they say they’re triggered by either a declaration of war or a national emergency.
So I think, so long as the military deploys along the border but they are not trying to enforce immigration law, they’re trying to control traffic, they’re trying to watch out for threats, I think they can still be acting in a military role. And then the statute which allows construction to support them would still be valid. I think that’s an interesting question. It's not, I think, ever been addressed by the Supreme Court.
A second question is this judicial deference, Youngstown question. Before getting to Youngstown, you could say this is sort of the same argument we saw in Hawaii v. Trump, this question could the President use the declaration of a kind of emergency, here, in that case a national security threat, triggering the powers that would allow him to shut down immigration flows from countries, the most of which are Muslim countries?
You remember the judiciary, although it was perhaps dubious or questioning at the lower courts, certainly, of the President’s motives for that and whether it was a violation -- he was trying to discriminate against people of a certain religion. The court in Hawaii v. Trump basically was fairly deferential. They didn’t slam the door completely and say you can never question or look at presidential animus, but they didn’t find it there. I would think, there, the evidence would have been higher than it is here. But they basically displayed a very strongly deferential view towards presidents finding these kinds of states and then triggering their powers. I think Youngstown is interesting, but I just don’t think Youngstown applies here because, as David pointed out, Youngstown was a war, actually, a much more severe, I would agree with him, national crisis than exists now with the border.
But I think the key for the Court -- again, here, Truman was acting according to his presidential power. Here, two things were key to the Court. One is the Court said Congress had specifically taken away the power from the President to end steel strikes or any kind of strikes in that kind of situation. That’s in contrast to here, where Congress actually delegated affirmable power. And then the second thing that Congress said was the emergency is over there. It’s in Korea. It’s on the battle field. That doesn’t give the President the right to essentially nationalize the entire steel industry, probably a large sector of our economy back then. It’s too attenuated, too far away. That’s really law making. That’s not really engaging with what’s going on at the battlefield, despite the fact that steel was important for arms and steel is also a huge part of our economy.
Here, I think it’s much more narrow. I don’t think it’s as attenuated, and I think we’re not talking about something that’s way in behind the front lines, as it were, which is the language that the Supreme Court used in Youngstown.
I actually wanted to raise an issue that I thought David would press more, which I think is maybe more of a weakness in my side would be, if we were to agree with President Trump’s view here of the law, does that open up the possibility of declaring national emergencies for everything? And the one many people raise is global warming. Could a future President Kamala Harris say that global warming is a national emergency and then trigger -- actually, there are a great deal of other statutes involving federal control over the economy that a national emergency declaration could trigger.
Could President Kamala Harris then say, “I’m going to require all cars to be electric by a certain date, or I’m going to block the import under the IEEPA statute of oil from abroad or fossil fuels,” or so on and so forth? “I’m going to impose a unilateral tariff on carbon coming into or leaving the United States,” which would appear to be allowed under the International Economic Emergency Powers Act once there’s a national declaration. So there, I think, there should be some difference. There is something called a national emergency, and I do think at the null of it a president could just say, “I think crime is a national emergency. I think poverty is a national emergency,” and trigger all those laws. I still do think there has to be some kind of event, or series of events, not just a social condition or a trend.
But I will say, in closing, presidents have abused that. President Obama declared a national emergency over a swine flu epidemic of 2009, which, if I remember correctly, didn’t happen. President Reagan declared a national emergency that an export law was expiring. There, I think, at some minimum level courts will ask is there actually something here that is an emergency and not just accessing power? But there’s a fine line there.
Dean Reuter: Very good. I want to give Dave French a couple more minutes. And maybe, in addition to judiciability, I think that maybe it’s a slightly separate issue of standing. If this gets into the Court, who has standing to bring this law suit, assuming, for the sake of argument, that the government is not taking property to build the wall? David French?
David A. French: I think John brings up a good point on talking about national security interests at the border, but the examples used, for example, the frontier Indian wars, the conflict with Mexico in the Mexican-American war, our unsuccessful forays into Canada, were classic armed conflicts within the law of armed conflict and wherein one entity is attempting to usurp the sovereignty of another entity. That would be classic, sort of, aggressive warfare within the meaning of the law of war. And in that circumstance, it’s a national security imperative to respond in that circumstance. I would say another circumstance where there is clear evidence, for example, that there is an intentional effort by a hostile, terrorist entity to infiltrate the border would trigger a national security response.
And you begin to see the administration has sort of positioned itself in that way, making some exaggerated claims about the threat on the southern border, when it actually appears that there’s a greater threat through the skies. More people try to come through the airports and even a greater threat on the northern Canadian border, than on the southern border. The southern border is much more of an economic issue. It’s a humanitarian issue. It’s an issue of domestic law enforcement, the proliferation, for example, say, of criminals who are illegal aliens. All of those things are civilian missions that do not impact the actual sovereign status of U.S. territory. And so this is a classic civilian mission. To make it a military mission would be a dramatic departure from American law and practice.
And so what I think, when I think of Hawaii v. Trump, which I think is one of the central cases in any litigation, I think of that as directly bearing on the question, and essentially foreclosing any talent of the ability of Trump to declare the national emergency itself. The statue, the National Emergencies Act, is broadly written, much in the same way the immigration statute at issue in Hawaii v. Trump was very broadly written. [It] granted a lot of discretion to the President. You might think that the President exercised the discretion poorly, but the discretion is there. So I think that Hawaii v. Trump would be a strong precedent for the notion that he can declare the emergency in the first instance.
However, unlike in Hawaii v. Trump, you have additional statutes that are directly relevant that have far more restrictive language, in some cases very restrictive language. And so in that circumstance, I don’t think the Hawaii v. Trump precedent is going to be as potent. In that circumstance, the judges will be able to look at additional statutes that impose precisely detailed conditions on the use of funds or the manner in which, how the construction is used. And so I think, in that circumstance, Hawaii v. Trump enables Trump on the front end but does not enable him on the back end when he actually tries to pull funds from specific pots and dispense it.
And John brought up a good point about is it possible that a future president would, to take a hopefully exaggerated scenario, declare a national emergency about global warming and then use eminent domain to turn a good chunk of Kansas into a wind farm. Under my reading of the statutes, which -- although it doesn’t place as much of a boundary on the President’s ability to declare the national emergency because the statute’s just very broad, and Congress should take a real hard look at it and think real hard about revising it. But under my reading which the discretion and the limits on presidential authority are then closely scrutinized depending on what additional statutes the President seeks to rely on to implement his policy or his proposals.
Under my circumstance and under my argument, these additional statutes should be read by the courts to mean what they actually say, in that the Court should not defer the determination of words like “essential to the national defense” or “requires the use of the armed forces” and just simply defer the interpretation of the words entirely to the Executive Branch. Congress passed these statutes. They intended these statutes to be enforceable in the Executive Branch. The Judicial Branch interprets these statutes. It should not abdicate its authority to interpret these statutes.
As far as standing goes, it’s hard for me to imagine a 240 mile wall that does not involve eminent domain, so I think you would absolutely having standing rights from some of these land owners who are, even now, broadly signaling that they will absolutely resist any attempt to take their land by eminent domain. So you would, obviously, have standing there. As far as is there state standing to resist, I’m more strict in my understanding and my interpretation of standing rules than, I believe, even the current Supreme Court is. I don’t necessarily believe that the state would have standing to assert the right to resist, unless the federal government was taking state land, specifically taking state-owned land. Unfortunately, however, we’ve been seeing just incredibly broad expansion of standing rules.
And I would have liked to have seen in Hawaii v. Trump the Supreme Court to grapple with that more fully because I thought some of the standing rulings by the lower courts in Hawaii v. Trump were just extraordinary, sort of granting states an enormous ability to sue on behalf of their citizens, granting individuals with attenuated interest standing to sue to challenge presidential policy. But I think, as a practical matter, if you’re going to build the wall over any lengths of ground, you’re going to encroach on private ground or state-owned ground. And in that circumstance, the standing issue becomes quite clear. But yeah, I do think, and it is absolutely the case, that if the position becomes, once a national emergency is declared, presidential findings should be entitled to an enormous degree of deference, if not even declared non-justiciable, then the parade of horribles is unlocked.
Because let’s not forget there’s actual Pentagon findings that there’s a threat to national security as a result of climate change. So this is something that’s been a matter of Pentagon finding and policy. I mean, I can tell you from my time in the JAG corps we were deluged with briefings about the threat of climate change, which most people sort of greeted with eye roles. But they’re there. It’s all over military policy, and so that’s not a far-fetched thing to imagine. But again, I think one of the other firewalls against this is national environmental policy, just like national border policy, is thick with congressional statutes, thick with congressional statutes.
And the idea that the national emergency declaration can then, essentially, override these congressional statutes is stretching the National Emergencies Act beyond its text. Certainly, if you have additional statutes, as are in play here, that further inexplicitly limit the scope and reach of a national emergency declaration, I think it would be unwise and constitutionally and statutorily unsound for the courts to exercise undo deference to the Executive.
Dean Reuter: Well, very good. This is Dean Reuter again. We’ve got over 250 people waiting patiently today to be heard, so let’s open the floor to questions. It looks like just two questions to get us started. So let’s take our first call of the day.
Juscelino Colares: Hi, good afternoon. This is Juscelino Colares from Cleveland. I’m a former student of David French at Cornell, so hello, professor. I have a quick question here. Assuming justiciability and standing issues are in control and the Court would move forward with the case, and in light of the examples that Professor Yoo gave, do the two statues you, Professor French, mentioned -- do they show -- and in light of the examples Professor Yoo talked about— President Obama invoking one of these statutes on the swine flu issue—do these statutes reveal a history of congressional acquiescence to the President’s use of delegated power that these statues provide that would allow the United States federal courts, and even at some points the United States Supreme Court, if necessary, to defer to the President’s use of that authority?
The case I have in mind is Dames & Moore v. Regan, a 1981 case where Justice Will Rehnquist, who was writing for the majority, upheld President Carter’s nullification of court issued attachments and suspensions of claims by American nationals against Iran in federal court under the International Emergency Economic Power Act. So my question is are these two statutes, if we’re only looking at these two statutes that Professor French mentioned, do they reveal a history of Congress going along with what the President is doing that would allow a court to see that this is an area where, yes, there is Congressional delegated power, the President is invoking it and would allow this exercise of delegated power?
Dean Reuter: Who wants to take a shot at that? David French?
David A. French: Well, I’ll start. So a couple of issues are in play. If you look at -- I believe there's maybe 28, I could be off by one or two, 28 current national emergency declarations, some of which have been on the books for a very long time. I don’t think there’s really any question that there’s been a lot of congressional deference to presidential administrations in these national emergency declarations. I think that’s pretty much beyond dispute and is consistent with congressional abdication of its authority on multiple fronts in recent years. I don’t believe that this abdication will have much practical legal effect in a court argument.
Any of these national emergency declarations are just fundamentally different in kind from the national emergency declaration that would be at issue here. For example, Iranian hostage crisis was an event that took place that is classically within the role and scope of the Executive and the Commander in Chief to respond to an international diplomatic crisis that included a violation of American diplomatic security and sovereignty. This is classic Commander in Chief, executive branch material here. And then some of the other, like swine flu declaration, some of these things are just, essentially, political posturing, saying to the American people, “Look. I’m taking this seriously,” without actually unlocking real action, certainly not action in defiance of valid and lawful statutes.
So I think what you would have here is something that is substantially different in kind. You would be unlocking a degree of power and an amount of money to be deployed and employed in service of a presidential agenda that is at odds with statutory law, at odds with statutory appropriated funds, just very different in kind. So I don’t think that the history of congressional inaction would have much to do with how a court rules on whether or not the specific statutes that I talked about would limit the President’s authority. But that’s just speculation.
Dean Reuter: Professor Yoo?
Prof. John C. Yoo: Yeah. I think that Dames & Moore v. Regan, as David says rightly, is not on point. But I think it’s a good question because it does show the kind of attitude, or deference, that the Supreme Court in particular, maybe not the lower courts, just like in Hawaii v. Trump -- the lower courts routinely rejected President Trump’s claims to delegate authority. I think this is a good example of what you might see at the Supreme Court if such a case came up. Because one thing that’s interesting about Dames & Moore v. Regan, if I recall, President Carter, then Reagan, their executive order also exercised powers that were not actually delegated to the President under the IEEPA statute.
If you remember, in exchange for releasing the hostages, the United States agreed to lift judgements and attachments on Iranian assets in the U.S. that had been litigated already, and finally decided by the courts, and then transfer the money to this international fund, you know, which because it’s created by the government, is still being administered and given out to claimants almost 40 years later. It’s really incredible that there’s still the Iran–U.S. Claims Tribunal still busily at work. The interesting thing is that IEEPA statute did not give the President the authority, even in the declaration of emergency, to lift those attachments because they are property interests in American law. You win your case. And it’s very interesting.
The Supreme Court said, “Even though the statute doesn’t delegate the power, it’s a national emergency. We defer to the declaration of national emergency. We accept the uses of all these other aspects of the power. Even though there’s a gap in the statute, it’s very similar to these other powers. We’re going to let the President do it anyway.” If you were, I think, reading the statutes tightly the way David is and expecting a more vigorous review, something like Dames & Moore would come out the other way. And it’s because I don’t think the Supreme Court wants to -- in an area where -- we’re not talking about global warming. We’re not talking about a social problem like crime or poverty. We’re talking about is there a surge, these caravans of immigrants trying to cross the border illegally along the border of Mexico? I don’t think a court is going to say we’re institutionally competent to really make a judgement about what’s going on there and what’s necessary. That’s classically what the Executive Branch is for.
And then the second point you just made, if someone wants to fix Executive abuse of the power, I think the courts are going to expect Congress to do it. If Congress wants to, they can just reduce the military construction budget next year by the exact same amount Trump pulls out of it, or they could change the statute. Or they could place conditions on future appropriations so that, even though President Trump may get a few billion now for a few miles of wall, if he were to take this stuff, Congress would really cut him off from ever getting a full border wall.
Dean Reuter: We’ve got three questions pending. Let’s check in with our next caller.
Doug Smith: Hi, it’s Doug Smith from Chicago. I have a quick question. There have been people that have suggested that emergency power is not necessary, that President Trump already has statutory power to build the wall. And they point to this congressional research service report that cites statutes about building fencing in drug corridors or whether it’s necessary to protect health and safety environment. And I think some people have suggested it even things like take money that the CFBP collects because, as Mick Mulvaney says, anything they do is effectively unreviewable, and just spend it on the wall. I’m wondering if you guys have any thoughts about whether any of those are viable alternatives or whether they might provide alternative grounds for declaring an emergency and saying, “I already have the authority under various statutes.”
Prof. John C. Yoo: I guess I could take that one first. There is this statute that you properly referenced. It’s about construction for drug interdiction. As David said, the factual problem is that it seems like most of the drugs that are entering the country are not entering over the southern border by land. They’re coming across by sea and by air, maybe even the mail. But putting that aside, my understanding, I could be wrong, is that there’s just not that much money in there. There are these two statutes actually. There’s one about drug interdiction and there’s one about civil works projects. But I think the reason why this doesn’t really provide a viable option for the President is it’s just not that much money.
And the second thing about the drug interdiction, as you said, it talks about these corridors or points where your drugs are coming through, so it would be hard to say a border wall, just a blanket wall across the country’s southern border is really in line with the way that statute is written. But actually, I think it’s mostly because there’s just not that much money involved, so I think that’s why Trump really has to go with the national emergency because that triggers the military construction budget, which is really where the big pot of money is.
David A. French: I agree with John on that. I think there’s just not very much money there. The drug smuggling issue from the southern border is concentrated in the actual ports of entry themselves. Now, if there was a particularly identified drug corridor, in other words, a place along the southern border where border officials had identified that this is commonly used by smugglers, there is a modest amount of money there to put up fencing. But as far as does that equal Trump’s wall, I just flat out don’t think there’s enough money there.
Some folks have argued that that act provides the authorization -- that the very existence of that act provides the authorization that’s required under one of the two statutes that I mentioned that allows the military to shift funds for authorized projects that are essential to the national defense. But again, I think that is sort of taking two different pots of money, conflating them and comingling them when they’re not permitted to be comingled under relevant law. So I do think there’s flexibility to build some fencing on identified drug smuggling corridors, but that is not the law.
Dean Reuter: We’ve got one question from one caller pending. Go ahead caller.
Donald Croll (sp): Good afternoon. This is Donald Croll from Washington, D.C. I had a question for both of you, based on Mr. French’s kind of discussion on the term “requires use of armed forces” and what that really means. What situation, I guess, other than war or some kind of intense criminal activity, would require the military? You mentioned DHS, ICBP and their statutory schemes already encompassing border security, but the military also does, you know, have humanitarian assistance and disaster relief efforts.
So would a strict interpretation of that preclude them from assisting in natural disasters since we already have FEMA, we have DHS, FCC, that already handle those issues? Would you need to call in the militia first because you can do that without requiring military? So I guess I’d want to hear your thoughts on expanding what that means.
Dean Reuter: Who wants to go first?
David A. French: I’ll go first, and then John can respond. So yeah. You raise a very good question. I think it’s a practical matter the way -- because of FEMA, because of the greater flexibility that governors have to utilize the National Guard in their states to respond to emergencies, as a practical matter, that’s the construct for responding to national disasters, is civilian elements combined with the National Guard is sort of the first line. But then, if there is a showing that those resources are insufficient to meet the urgent needs of the moment, then, at that point, I don’t think there’s any real argument that you wouldn’t meet the definition “require the use of the armed forces.”
But then, as soon as you meet that definition, then you’re talking about, well, what can you construct with those funds? And what you’re constructing in those circumstance are structures to support the use of the armed forces. So that would typically mean, for example, helipads. It would mean housing. It would mean the kinds of things that directly facilitate the use of the military. So I think that’s one of the other problems with that analysis is that the wall is not actually something that is designed for the use by the armed forces. It’s actually something that’s designed to be a permanent structure for the use of the civilian border enforcement authorities.
And so in that circumstance, I think you fail on the second prong, even if, for example, there was such an influx at the border, orders of magnitude beyond what we have now, to where the inability of civilians and state militia to respond to a fundamentally different circumstance would arguably meet the prong for requiring the use of armed forces, you’d still have the problem that the structure itself is designed for civilian use to its core. And so I think that’s a real problem, and I think the only way you get beyond that is by extreme judicial deference that John has argued the Supreme Court would be likely to exercise.
But barring that extremely judicial deference, which I don’t think is called for by the statute, that’s the barrier, even if the emergency reaches the point where it’s similar to, say, a hurricane, or a series of tornadoes, or an earthquake.
Dean Reuter: Let me give John Yoo, Professor Yoo, a chance to answer that, but let me augment the question. You’re a big proponent of inherent executive power, Professor Yoo.
Prof. John C. Yoo: Guilty as charged.
Dean Reuter: I will add to that question not only what is an emergency but who gets to decide that and why, given your view, wouldn’t that decision naturally rest with the President? Justice Breyer, I think, speaking for a unanimous Court, as I recall, in Noel Canning said, basically, the Senate is in session when the Senate says it’s in session. Why doesn’t the President get to define a national emergency?
Prof. John C. Yoo: I agree, and I think you’re correct, Dean. All these issues kind of tie together. David makes some good arguments about why the statute here, if you read it in a certain way, would not allow for the building of some parts of the wall. But the question is, in these kinds of national security cases and foreign affairs cases, the Court sort of never, as far as I know, doesn’t import its own view of exactly the right answer. They give the Executive Branch and Congress the space. The only time that I think they have really intervened in some kind of decision like this, what’s militarily necessary, which is, I think, an area where courts really would not want to get involved -- the only time you’ve seen that is when there’s an individual liberty at stake, particularly habeas corpus cases. I’m thinking of the ones out at Guantanamo Bay like Boumediene and so on.
Notice, even there, the Court doesn’t question what’s militarily necessary. What they do is say we’ve developed a little more process. So I think David’s right. If there’s a case involving taking a property on the border, then I think you’d get some kind of litigation, mostly about just compensation. I don’t think it would really be about public use. But I think the Court would still be leery of questioning is the wall really necessary to the military objective. That, I think, it’s hard to point to any Supreme Court cases where the Justices have not given that kind of broad deference, and I would expect they would do the same here.
Second, the question you raised, Dean, is interesting because, before the National Emergencies Act, this claim of national emergency was just presidential. There was no statutory authorization. And so I think it was more as the President “I’m going to declare this is an emergency and it will explain the use of my legal, constitutional powers.” It wasn’t a claim of “I’m going to start triggering all of these statutes.” It’s just “I’m going to use the powers available to me as the Chief Executive, and the national emergency is why I’m using it.” And it goes back a long ways. It’s not something that was just created by FDR, although I think he probably abused it when he declared a bank holiday, essentially, because of the national emergency of the Depression, which had been going on for four years by that point. But it goes all the way back to Thomas Jefferson and the Aaron Burr conspiracy and Abraham Lincoln, Andrew Jackson. These are all moments when the nation was challenged, and I think courts have been respectful of that.
The interesting question would be could Congress cancel a national emergency that the President really, in his constitutional right, already thinks exists? And that, I think, we’ve never had to confront that issue. That, I think, would raise the point you are asking for, Dean, and I would think the President, as the head of the coordinate branch, has that right. The only question is then what powers flow from that? Some are going to be constitutional in the Executive Power Clause. Some are going to depend on congressional delegated authority. But it’s really that delegated authority where you're going to have the litigation.
David A. French: I think if you go down to the crux of the disagreement between John and I, I think it goes to something that he said just a moment ago about how the courts have been -- and they absolutely have been, of course, with the very notable exception of Youngstown Steel, quite deferential when national security interests are at stake to presidential determinations and presidential actions. I think that the crux of the difference is I don’t think that the President, in the absence of the state of armed conflict, in the presence of a thicket of statutes identifying the border security mission as a fundamentally civilian mission, and in the absence of an identifiable military threat on the border are going to exercise the national security style of deference here.
That essentially what the President is doing is trying to substitute his own law enforcement priorities for Congress’s defined law enforcement priorities, his own construction priorities for Congress’s defined construction priorities, in the absence of these clearly identifiable and empirically discernable national security type challenges, like you would have with the Iranian hostage crisis, or you would have after September 11, or you would have in the Korean War, for that matter, even though that demonstrated the limits of the President’s reach. When you’re talking about a law enforcement action that is a civilian mission, that the use of the President’s national security powers to override that, but essentially still to conduct that civilian mission, are going to be not at their peak but at a low.
Dean Reuter: Well, very good, gentlemen. I’m afraid, for today at least, we’re going to have to leave it right there. We’re out of time. I don’t think we’re out of answers or questions, but thank you, today, to both Professor John Yoo and David French. It’s been a fascinating discussion. Perhaps we can have you both back as facts on the ground develop. I would welcome that. And to the audience, thanks as well for dialing in and for your thoughtful questions. Also for the audience, check your emails and check in with our website for announcements on upcoming teleforum conference calls. But until that next call, we are adjourned. Thank you very much, everyone.
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