CNN analyst: Courts ‘unlikely’ to stop Trump from declaring federal emergency for wall

January 11, 2019

CNN analyst: Courts ‘unlikely’ to stop Trump from declaring federal emergency for wall

As the government shutdown enters its 21st day, even some Democratic strategists see the writing on the wall. President Donald Trump will get the $5.7 billion he requested to fund parts of a barrier along the U.S.-Mexico border, even if he has to circumvent Congress and use his executive authority.

CNN chief legal consultant Jeffrey Toobin admitted on Thursday that he thinks it is “unlikely” that federal courts could stop the White House from declaring a national emergency and allocating funds to build a wall at the southern border.

The writing on the wall

Appearing on CNN’s “New Day,” co-host John Bergman asked Toobin if he thinks that it would be legal for the president to shift money from other programs toward the wall by declaring a national emergency. “I think it probably is,” Toobin answered. “I think it is unlikely to be stopped by the courts, let’s put it that way.”

Watch below:

Under the 1976 National Emergencies Act, the president has the authority to issue a state of emergency when the public is in danger, granting himself access to 100 special provisions to be used at his discretion. These powers allow the president to ignore standard laws and civil protections in order to quickly respond to urgent threats.

Under Title 10 of the U.S. Code, during a national state of emergency the Department of Defense “may undertake military construction projects … not otherwise authorized by law that are necessary to support such use of the armed forces.” The same regulation goes on to explain that “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.”

Cloaked in enormous power

Toobin explained why the broad emergency powers invested in the president would make it difficult for any plaintiff to challenge his orders. He said:

Ultimately, [it is unlikely to be stopped] for a couple of reasons. One is that the president’s emergency powers are phrased in a very broad way. And second, as a purely legal matter, it is hard for me to imagine the courts finding a plaintiff with standing. That is, the plaintiff with the legal right to sue to stop this at any early point in the process.

“You know, the president’s emergency powers have been invoked more than you think, often on issues that are not terribly high profile, issues involving Congo, for example … and there are 31 current emergencies,” said Toobin. “Most of them not controversial at all. But, you know, they indicate the breadth of the president’s power here. And, you know, at least in the short-term, I think that if President Trump wanted to do this, the courts would let him.”

Toobin’s argument that presidents commonly invoke national emergencies is factually correct. Since 1979, U.S. commanders-in-chief have declared national emergencies 58 times, and 31 of these are still ongoing.

Despite these statistics, mainstream news outlets like The New York Times portray the National Emergencies Act as “an extraordinary measure rarely used by presidents absent an urgent security threat.” The liberal press want Americans to believe that Trump would be vastly overreaching if he declared a state of emergency — even though this authority has been invoked on average 1.5 times per year since 1979.

Yet, The Times called Trump’s threatened use of presidential power an “extraordinarily aggressive move,” which would be, “at a minimum, a violation of constitutional norms.”

Is this an emergency?

In 2017, more than 72,000 Americans died from drug overdoses, mostly from fentanyl and heroin — much of which comes across the southern border. In fact, due to the sharp increase in drug overdoses, and to a lesser extent, suicide, U.S. life expectancy is declining for the first time in decades.

It’s hard to imagine a more appropriate reason for applying emergency powers. Trump understands this, which is why he has repeatedly asserted his intent to declare a state of emergency unless congressional Democrats provide him with the $5.7 billion requested to begin construction on the massive project.

“If we don’t make a deal with Congress, most likely I will [declare a national emergency],” Trump told Fox News’s Sean Hannity Thursday night. “I would actually say I would. I can’t imagine any reason why not, because I’m allowed to do it.”

Like Toobin, Trump understands that “the law is 100 percent on my side” when it comes to presidential emergency powers. Democrats would be wise to reach an agreement with the president. Otherwise, they may just lose their seat at the negotiating table.  

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Benjamin Baird

Benjamin Baird is a senior staff writer for the Conservative Institute. He is a veteran infantryman of Iraq and Afghanistan with over 1000 days in combat and holds a degree in Middle Eastern studies from the American Military University. Ben is Writing Fellow at the Middle East Forum and has written for dozens of conservative publications, including The Daily Caller, American Spectator, American Thinker, New English Review and Jewish News Syndicate.