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Using Emergency Powers to Seize Property and Build the Wall Would Set a Horrible Precedent

January 9, 2019 in Economics

By Ilya Somin

Ilya Somin

Last night, President Trump restated his desire to build a
border wall, despite Congress’ refusal to appropriate funding
for it. Fortunately, he did not declare a “national
emergency,” as he had previously threatened to do. But
administration officials indicate that option remains on the table if
Congress refuses to give in to Trump
, as is highly likely. The
claim that emergency authority can be used to build the wall and
seize property through the power of eminent domain is highly
dubious. If the President succeeds, it would set a dangerous
precedent.

One of the fundamental principles of the Constitution is that
Congress is the only branch of the federal government that has the
power of the purse. The President cannot spend money for purposes
not authorized by the legislature. That rule prevents any one
person from controlling the nation’s public funds.

Trump cannot use “emergency” powers to get around
the requirement of congressional authorization. if doing so
involves using the military to build the wall, he would run afoul of longstanding laws barring the
use of troops for domestic law enforcement purposes
(which
includes enforcing immigration law).

Conservatives who cheer
Trump now may regret it if the next Democratic president uses the
same powers to appropriate funds and take property for liberal
policies.

Congress has unwisely granted the President a wide range of easily abused emergency powers.
But, so far, it does not seem any of them cover this situation.

Some point to 10 U.S.C. 2808 and 33 U.S.C. 2293 as possible sources of authority. Yet
neither actually grants it. Section 2808 states that, if the
President declares a “national emergency” that
“requires the use of the armed forces,” he can use
certain military funds to “undertake military construction
projects… that are necessary to support such use of the armed
forces.”

It is far from clear whether any supposed emergency caused by
undocumented immigration really “requires the use of the
armed forces” or that a wall would be “necessary to
support such use.” Indeed, the law forbids the use of the
armed forces for domestic law enforcement. Section 2293 likewise
only applies to a declared war or emergency that “requires or
may require use of the Armed Forces.”

Another federal law allows the military to
condemn property for “fortifications.” But that only
extends to projects for which funding has been appropriated by
Congress. And a wall intended to keep out migrants hardly qualifies
as a “fortification” preventing armed attack.

It is difficult to predict the outcome of a legal battle over
emergency powers. Courts often give Presidents <a target=_blank href="https://reason.com/admin/pages/365033/authorized%20civil%20works,%20military%20construction,%20and%20civil%20defense%20projects%20that%20are%20essential%20to%20the%20national%20defense." …read more

Source: OP-EDS

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