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Law Prof: Congress Gave Presidents Emergency Power Needed to Build Border Wall Back in 1976


Law professor Jonathan Turley says that President Donald Trump has the express authority to build a border wall because Congress ceded such authority to the presidency in 1976.

Writing in The Hill, Turley first notes the constitutionally-based objections to Trump’s proposed use of national emergency powers to begin construction on the oft-promised wall between the U.S.-Mexico border.

“Representative Adam Schiff, Berkeley law school dean Erwin Chemerinsky, Yale law professor Bruce Ackerman, and others denounced such a move as flagrantly unconstitutional,” Turley noted. “The concern is well founded even if the conclusion is not.”

Turley, a professor at George Washington University Law School, then explained that Schiff’s objection was based on the landmark Supreme Court case of Youngstown Sheet & Tube Company v. Sawyer which found that then-president Harry Truman lacked constitutional authority to seize steel mills amidst a confrontation between labor and bosses.

In short, business leaders refused to raise steelworkers’ wages in accordance with federal mandates unless they could also raise prices–thus precipitating a nationwide steelworkers’ strike. In a balancing act intended to protect labor without causing disruption to the wartime economy, Truman tried to seize the steel mills and keep them running as usual–with higher pay for the workers. This attempt failed because the Supreme Court reasoned that absent statutory authority or an express grant of such power under Article II of the U.S. Constitution, Truman was acting out of bounds by declaring a face-off between labor and capital a national emergency.

“In a powerful check on executive authority, the Supreme Court rejected his rationale for unilateral action,” Turley notes. “The Supreme Court was correct. That, however, was 1952.”

And quite a bit has changed since then.

Roughly two years after learning some kind of lesson from presidency of Richard M. Nixon, the U.S. Congress passed the National Emergencies Act. Intended as another check on open-ended executive authority, the National Emergencies Act has been used dozens of times since its passage to declare longstanding national emergencies by various presidents.

Turley writes:

The 1976 National Emergencies Act gives presidents sweeping authority, including an express allowance to declare an “immigration emergency” to deal with an “influx of aliens which either is of such magnitude or exhibits such other characteristics that effective administration of the immigration laws of the United States is beyond the existing capabilities” of immigration authorities “in the affected area or areas.” The basis for such an invocation is generally worded and includes the “likelihood of continued growth in the magnitude of the influx,” rising criminal activity, as well as high “demands on law enforcement agencies” and “other circumstances.

That’s not entirely accurate. The 1976 National Emergencies Act–contained at 50 U.S.C. Chapter 34–contains exactly zero mentions of the word “immigration” and similarly no references to any sort of “express allowance” for U.S. presidents to declare immigration emergencies.

In fact, the language used in the above paragraph isn’t from the National Emergencies Act at all. Rather, that language is culled from definitions contained in the Code of Federal Regulations–contained at 28 CFR 65.81–as they relate to judicial administration and their grant of statutory authority comes from 8 U.S.C. and 42 U.S.C.

In other words: there doesn’t appear to be any genuine connective tissue between the National Emergencies Act and the definition language used by Turley in his article.

Law&Crime reached out to Turley for clarification on this issue. In an emailed response he said:

Two lines were conflated for space, but the point is that the Act allows for the declaration of national emergencies and the federal law includes specifically defined immigration emergencies. In reality, the Act does not even require such a reference to a category of emergency. However, federal law already recognizes immigration emergencies as a defined category for executive action. There is no case [connecting the Act to the definitions cited] that I know of because presidents have been subject to little judicial review in the ascertain of the powers under the Act. However, the “connective tissue” is the preexisting recognition of immigration emergencies under federal law. If Trump declares tonight, the Justice Department can cite the CFR as a long-standing recognition of this type of border emergency.

[Image via Fox News screengrab]

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