The White House can use unspent funds to build a wall if President Donald Trump declares a national emergency and fends off various lawsuits, say lawyers cited in media reports.
The New York Times reported:
The Trump administration could point to two laws and say they allow officials to proceed with building a border wall without first obtaining explicit authorization and appropriations from Congress, according to Elizabeth Goitein, who oversaw the Brennan Center’s study and is a co-director of its Liberty and National Security Program.
One of the laws permits the secretary of the Army to halt Army civil works projects during a presidentially declared emergency and instead direct troops and other resources to help construct “authorized civil works, military construction and civil defense projects that are essential to the national defense.”
Another law permits the secretary of defense, in an emergency, to begin military construction projects “not otherwise authorized by law that are necessary to support such use of the armed forces,” using funds that Congress had appropriated for military construction purposes that have not yet been earmarked for specific projects.
“I think that it’s possible that the president could declare a national emergency and then rely on authority Congress has historically granted for exigencies to free up some funds to support constructing a barrier along the border,” William Banks, a Syracuse University law professor and the author of the 1994 book National Security Law and the Power of the Purse, told the New York Times.
According to the Wall Street Journal:
Currently, $13.3 billion in the Pentagon budget may be available, according to a congressional aide, enough to cover the $5 billion that Mr. Trump is seeking for the border wall. That would have to be diverted from projects such as military housing that Congress previously authorized.
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Steve Vladeck, a law professor at the University of Texas at Austin, said that without a statutory definition of “emergency,” courts are unlikely to second-guess the president’s judgment on that. The National Emergencies Act envisions that political checks, rather than litigation, will prevent abuse of executive authority, Mr. Vladeck said.
The Los Angeles Times said:
Legal experts say the act gives the president the power to declare a national emergency. But the act does not require presidents to prove a crisis exists to declare an emergency — it’s at their sole discretion.
Congress can terminate a declared emergency, but it requires a two-thirds majority in both chambers, according to Loyola law professor Jessica A. Levinson.