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Can the President Alone Build a Border Wall?
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When Donald Trump was looking for a catchy phrase during his 2016 presidential campaign to address the issue of immigrants entering the United States unlawfully — a line that would resonate with his supporters — he came up with the phrase “build the wall.” The reference, of course, is to what Trump advertised would be a 30-foot-tall, thousand-mile-long Mexico-financed physical wall along our border with Mexico.

At first, most folks seemed to dismiss this a pie in the sky. Why would the government of a foreign country pay for a wall in the United States built so as to keep its own citizens and residents from entering the United States? The answer: It wouldn’t.

So President Trump changed his argument that Mexico would pay directly for his wall by arguing instead that the $5.7 billion down payment he wants — on a $25 billion to $30 billion project — would indirectly pay for itself in reduced government welfare and law enforcement expenses. The idea of the wall never took hold during the first two years of his presidency, when the Republicans controlled both houses of Congress.

Even Republicans were leery of the cost and the imagery. The federal government is running about $1 trillion a year in the red, and Republicans are looking to offer comfort in their party to Hispanics. Adding to that debt to build a wall that would affront other Hispanics did not rest well with them. Until now.

Now that the Democrats control the House of Representatives, where the idea of a wall is dead on arrival, it is easier for House Republicans to argue in favor of it. Because the Democrats numerically outnumber them, the House Republicans won’t be forced to vote on it. The president is probably kicking himself for not calling in a few favors and addressing the wall before the Democrats took control of the House.

So, faced with intractable opposition in the House and only lukewarm, mainly symbolic support in the Senate, Trump has threatened to bypass Congress, declare a national state of emergency and build the wall on his own. Can he legally do this? In a word: No.

Here is the back story.

The Constitution is the supreme law of the land. Everyone who works in government takes a public oath of fidelity to the Constitution; that means to its very words and to the values that those words represent. All federal powers come from the Constitution — and from no other source. The states formed the federal government and limited its powers when they ratified the Constitution. These are all basic truisms of American government, yet we have veered so far from them that they bear repeating.

ORDER IT NOW

Now, back to the president’s wall. President Trump has no power to build a wall or a fence or a doghouse on private property without an express or implied congressional authorization to do so. The vast majority of the property in Texas on which he wants to build is private, according to Rep. Will Hurd, R-Texas, whose district contains a longer stretch of the border than anyone else’s.

Thus, the federal government must use eminent domain, which gives each landowner the right to a trial to challenge the government as to the worth of the property the government wants. Rep. Hurd, a former CIA agent and conservative Republican who opposes the wall, has articulated the views of most of his 800,000 constituents: Not in my backyard.

We know from the plain wording of the Constitution and from history that all expenditures of money from the federal treasury and all federal use of private property must first be approved by Congress. In 1952, the Supreme Court ruled on this when President Harry Truman seized American steel mills during a labor strike and directed the secretary of commerce to hire folks to operate the mills, pursuant to his own emergency declaration that steel was vital to the war effort in Korea. The court held that only Congress could authorize the seizure or adverse government occupancy of private property and the expenditure of money needed to operate the mills.

Then, in 1976, Congress provided a definition — which, shortly thereafter, the courts refined — of a national emergency: the existence of events truly beyond the ordinary, wherein there is a palpable and immediate threat to lives, safety or property that cannot be addressed by the employment of ordinary government assets or the exercise of ordinary governmental powers. That is hardly the case today with the former Central American caravan in Mexico now settled in and housed by the Mexican government away from the border.

Nevertheless, the 1976 law requires that all ordinary assets — our president prefers the military — be determined useless before a lawful emergency can come into effect. The military useless in an emergency? And if this is such an emergency, why did the president wait until it abated before addressing it?

Perhaps the answer is that his frustration with the Democratic House has reached a boiling point, but that boiling point cannot be a basis for a declaration of a national emergency. A valid emergency declaration streamlines the government to address the emergency, but it cannot authorize anything that the Constitution prohibits, nor can it authorize the president to avoid anything that the Constitution requires.

The president has sworn not only fidelity to the Constitution but also to take care that federal laws be enforced. If he could disregard that oath, if he could ignore those laws, if he could spend money not authorized by Congress, if he could occupy private property not subject to eminent domain against the will of the owners — in short, if he could make the laws, as well as enforce them, then he would not be a president. He’d be a monarch.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
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  1. Svigor says:

    Don’t worry, fat man, I’m sure someone will comment soon.

  2. anonymous[340] • Disclaimer says:

    “We know from the plain wording of the Constitution and from history that all expenditures of money from the federal treasury and all federal use of private property must first be approved by Congress.”

    “The president is probably kicking himself for not calling in a few favors and addressing the wall before the Democrats took control of the House.”

    But what provision in the Constitution says that Congress may act only on matters that have been first addressed by the President?

    Kabuki gridlock, a stock scene in the endless puppet show. That’s why the midterms are the Most Important Election Ever(tm), too. And if something threatening to the Establishment looks like it might happen in the meantime, one of the robed can enter stage left and issue an injunction or something.

    • LOL: Bubba
  3. Tom Verso says:

    The ‘Judge’ writes: “In 1976, Congress provided a definition — which, shortly thereafter, the courts refined — of a national emergency: the existence of events truly beyond the ordinary, wherein there is a palpable and immediate threat to lives, safety or property that cannot be addressed by the employment of ordinary government assets or the exercise of ordinary governmental powers.

    “That is hardly the case today with the former Central American caravan in Mexico now settled in and housed by the Mexican government away from the border.

    Well it’s nice to see the ‘Judge’ actually talk about ‘law’. But, he can’t quite shake is anti-Trump TV talking head ways.

    First, visa vis the 1976 law: who decides what constitutes a national emergency; what is “truly beyond the ordinary, wherein there is a palpable and immediate threat to lives, safety or property that cannot be addressed by the employment of ordinary government assets or the exercise of ordinary governmental powers?”

    The President as repeatedly address these issues, but the ‘Judge’, in the manner of TV rhetoric, reduces all Trumps ‘factual’ claims about drugs, human trafficking, terrorist, etc. etc. to “Central American caravan”.

    Second, regarding can emergency be addressed by “employment of ordinary government assets or the exercise of ordinary governmental powers.” Again the ‘Judge’ conveniently ignores, a la talking heads, the President’s explicit and specific rejection of Democrat’s claims that various “ordinary assets” such as cameras, drones, etc., in the absents of a ‘wall’ would suffice.

    Third, “all expenditures of money from the federal treasury and all federal use of private property must first be approved by Congress.”

    The ‘Judge’ ignores the fact that there is about 100 billion dollars already appropriated to the Defense Budget not allocated and may be used for discretionary spending (e.g. a wall); i.e. the President does not have to go to congress for the funds.

    Forth: “Rep. Hurd, a former CIA agent and conservative Republican who opposes the wall, has articulated the views of most of his 800,000 constituents.”

    How is that for a social scientific survey? One man knows what 800,000 people want. Moreover, the wall is not for the 800,000 people on the Texas border. It’s for the nation … 350 million people. What do they want and need ‘Judge’? Hint: what does the election of a man who ran on a Wall platform tell you?

    In short, the ‘Judge’ continues on these pages and on TV to front himself off as an object legal commentator. When he is fact a well-paid run of the mill TV talking head anti Trump Democrat partisan.

    • Replies: @Sowhat
    , @Hypnotoad666
  4. Congress provided a definition of a national emergency: the existence of events truly beyond the ordinary

    Such as white Americans regressing from despised majority to despised and powerless minority?

    • Agree: Hail
  5. Has Nappy ever been correct on anything. He’s just like Karl Rove. No clue.

    • Agree: Patricus
    • Replies: @Bubba
  6. MrTuvok says:

    According to Bill Still, the once brave Napolitano who called out Obama on his wiretapping, has now flipped and is predictably anti-Trump. He was called out by the reputable Joe diGenova and Victoria Toensing for his low quality legal analysis in the Michal Cohen case as well.

  7. nickels says:

    Lame.
    The President can do whatever he wants and defy the lame fake courts to whatever extent he desires.
    On this action he has the full support of not only his voters, but a large number of voters across the aisle.
    NO ONE, absolutely NO ONE will balk if he tells the fake leftists courts to eat it over this one. Not even the Army could face down the ire of the entire nation that would arise against them to fight for this issue.
    Its happened in the past, and will happen many times in the future, so long as the antiquated courts exist.

    • Replies: @follyofwar
  8. Anyone reading this please correct me if I’m wrong. When Judge N talks about opposition to the wall from that Texas Congress critter, is he perhaps indulging in a straw man argument? As the Rio Grande forms Texas’ entire southern border with Mexico, I thought that no wall was planned there. Where would they put the wall anyway? In the middle of the river, where it would disrupt navigation? They couldn’t put it on the Mexican side, could they? If they put it on Texas’ side, where are the fishermen supposed to fish? Aren’t there other desolate, isolated, mountainous regions in Arizona/New Mexico where no wall is practical or planned either?

    Also, does the Judge expect us to believe that all elected officials care about respecting the oath they take to the Constitution? Obviously they don’t. Most vote the way that party leadership tells them to vote.

    The Courts might be the worst of all. Supreme Court justices are political hacks. They rule their ideology, then have their law clerks justify their decisions by citing parts of the law that they like, and disregarding parts that they don’t. If SC justices were loyal to the written word of the Constitution, then how do we wind up having so many 5-4 decisions, with the liberals all voting one way and conservatives the other?

  9. @nickels

    This country is split pretty much 50/50. You are wrong to assume that “the entire nation would rise up” to shout down the courts if they prevented the President from building the wall. In fact, the other side (the Left) would be the ones taking to the streets and rioting in great numbers if Trump chose to ignore a Court decision. Washington is deathly afraid of too much civil unrest, and our side is generally much better behaved.

    If it came down to it, the key could be the military. They take an oath to the Constitution, not to any particular president. They are not his Pretorian Guard. I could envision a “Seven Days in May” scenario, in which they have Trump locked up, followed by a period of martial law.

    • Replies: @nickels
    , @nickels
  10. nickels says:
    @follyofwar

    If things get ugly, Trump resigns just like Andrew Jackson did. Pence pardons him, then Trump runs again and wins in 2020.

  11. nickels says:
    @follyofwar

    Your scenario is interesting, however.
    Would a military dictatorship lead to a better America? No more need to bow to the cultural marxist, no need for mass immigration. Immigration might be stopped just because it destabilizes. And trannies and gays, same thing.
    I wonder.

    • Replies: @follyofwar
  12. Does the constitution allow Congress the power to delegate to the President the power to declare a national emergency?

    Can anybody here direct us to any language in the document which unambiguously so provides?

    Is there any record of any supporters of the proposed constitution at the state ratifying conventions articulating that Congress would have the power to give to the President the ability to declare a national emergency in which private property could be seized and funds appropriated and spent without congressional approval?

    Would the constitution have been ratified if Hamilton and Madison had argued that the constitution would permit the President the power to declare national emergencies thereby dispensing with the rule of law and respect for private property?

    Is it not better for white people to grow a pair and recognize that their fate is doomed by reposing any confidence, faith, or trust in the Pinochet paradigm?

    Don’t white people understand that their willingness to outsource, to the state, their responsibility to foster and maintain a civilized, decent, peaceful, and prosperous society, has been a disaster?

    • Replies: @KenH
  13. Bubba says:
    @GamecockJerry

    He used to say he was a libertarian and even had a show on Fox Business News extolling the virtues of libertarianism. Now he carries water for a corrupt and lawless prosecutor like Herr Mueller. What is it with these supremely egotistical Italians switching to the wrong side in the middle of a war?

    Napolitano is always confidently wrong.

    • Replies: @follyofwar
  14. anarchyst says:

    Napolitano conveniently forgets that previous presidents have done much worse. Lincoln with his jailing of newspaper editors who did not “toe the line” when it came to the “war of northern aggression” and Roosevelt (FDR) with his illegal confiscation of American citizens’ gold bullion and coins.
    Let’s not forget that the courts themselves stretched the “commerce clause” to cover just about anything that the government wants–not just products in “interstate commerce”.
    Trump would be wise to just “build the wall” and dare the courts to “do something about it”. In fact, in any negative court ruling about immigration practices, Trump could tell the courts “you have made your ruling–now try to enforce it”…

  15. republic says:

    “Rep. Hurd, a former CIA agent and conservative Republican who opposes the wall, has articulated the views of most of his 800,000 constituents”

    Hurd a black affirmative action hire CIA agent where 70% of his constituents are Hispanic would obviously not be in favor of a wall.

    Whites 25%, Blacks 3.85% black.

    Hurt won the last election by around 1000 votes.

    Don’t think that the 23rd congressional district will remain in his hands much longer. By the way, the future of black affirmative action doesn’t look to good in a future Hispanic state.

  16. @nickels

    Actually I agree that military control (it need not be a dictatorship)would be way superior to the dysfunctional system we have now – unless the generals are interventionist Neo-liberals or Neocons, which I think many probably are. The mass of American people are too dumbed down to vote responsibly anyway. Our Founding Fathers knew this, which is why they limited the vote to white male landowners.

  17. @Bubba

    I used to love Judge N, and was a huge fan of his show “Freedom Watch.” Ironically his show was cancelled by FNB, in spite of excellent ratings for, I think, three main reasons.

    1) He started endorsing Ron Paul in his bid for the GOP nomination.
    2) He promoted Wikileaks and defended Julian Assange.
    3) He was anti-war and anti-military interventionism, a very big No-No.

    My biggest fear is that the same fate might befall Tucker Carlson, who has been a breath of sanity among the Israel-first neocons who run Fox News.

  18. buckwheat says:

    Thank God this asshole isn’t a judge anymore. I think his brain is fried from TDS. He’s acting more like a space cadet daily. His columns need to be subtitled as humor…..

  19. KenH says:
    @Liberty Mike

    Does the constitution allow Congress the power to delegate to the President the power to declare a national emergency?

    I don’t know at the moment but Congress has delegated such powers to the president and they have been invoked by past presidents:
    https://www.brennancenter.org/analysis/emergency-powers
    https://www.brennancenter.org/sites/default/files/analysis/NEA%20Declarations.pdf

    My understanding is that the declaration of a national emergency must meet the following two conditions:
    1) The President must formally declare a national emergency.
    2) The President must cite the specific statutory authority they seek to use.

    The National Emergencies Act of 1976 imposes some checks and balances on a president when a state of emergency is declared so it cannot be open ended and in effect indefinitely.

    But if tens of thousands of “migrants” openly declaring that they will enter our country illegally while waving the flags of the nations they claim are oppressing them isn’t a national emergency then I don’t know what is. What constitutes a national emergency depends heavily on where one falls on the ideological spectrum and since leftists hate America and white people they view all non-white people entering America. regardless of how they come, as liberators of sorts. Then you have the libertarian extremists who are opposed to all borders and immigration controls.

    You can busy yourself with Constitutional implications and vagaries all you wish, but our borders are becoming a laughingstock and given the sheer numbers of people who’ve attempted to enter every month for the last several decades this clearly elevates illegal entries to that of a bona fide national security threat meriting unilateral action on the part of the oval office occupant.

  20. Now that the Democrats control the House of Representatives, where the idea of a wall is dead on arrival, it is easier for House Republicans to argue in favor of it.

    You got that much right. Republican voters want a wall. Republican congressmen want money from the cheap labor lobby.

    Can he legally do this? In a word: No.

    He can do it in defiance of a court order setting himself up for impeachment. Or he can do it after the Supreme Court agrees to hear it and subsequently signs off on it. The Constitution means exactly what the court says it means today. Nothing more.

    I hope he gets his wall. But the wall will not affect immigration law. If the congress insists on holding the border open there will be nothing Trump can do about it. Think about it if you can judge. The Chamber’s desire for cheap labor trumps (no pun) American sovereignty. “Our” congress is willing, even eager to sell American sovereignty for a campaign contribution.

    There is no reforming that kind of corruption. You can’t turn a pickle back into a cucumber. It’s over for the Dollar, the Empire and the Republic. Trump is the last American Emperor. The Captain of the Titanic. Secession is the way forward for Americans not wanting to be ruled by the District Of Corruption.

    You will say it’s illegal.

  21. George 1 says:

    About 3000 Americans are killed every year due to the actions of illegal aliens. This has been going on for a very long time. Illegal aliens cost the public an enormous amount of funds every year, far more than they pay in taxes. Many other Americans are maimed, raped, robbed and assaulted by illegal aliens. Not to mention people who die because of the drugs brought over the Sourthern Border.

    All of that does not matter to elites like Napolitano. It is a manufactured crisis according to these people. Like Bill Kristol has basically said, lower and middle class Americans can just die so that our new overlords can move in and replace us.

  22. News flash Nappy: Your “Goddamn piece of paper” also says that only congreff can declare war.

  23. @Tom Verso

    I’d also point out that the arguments about the border not being on federal land only apply to Texas (a legacy of its being its own sovereign nation when it came into the union).

    And the military built hundreds of miles of “Bremer Walls” in Iraq. They must still have these movable concrete sections. So they could just start a linear surplus wall storage facility that happens to run along the border.

    They don’t need separate congressional budget line items to build the walls of their barracks and bases. So that’s a non-issue.

  24. Excuse me,

    the border is a national security issue. That is expressly the domain of the executive. He doesn’t have to declare a state of emergency —

    The border is not private property – it is federal. Private property resides on it edges. He doesn’t congressional approval. And he can task the US military — COAE to design, and implement building a wall to secure the US further from one intrusion or twenty thousand.

    It is neither illegal, unconstitutional, inappropriate, wrong, mean spirited, or negative in any way. People reinforce their fences every day. They lock their doors at nite, the board up their windows, they buy weapons, train dogs . . . all to one end — secure their property.

    Whether congress has the integrity to engage in immediate border security has no bearing on the president’s responsibility or ability to do so.

    The gymnastics on this matter will not overcome the simplistic legality – regardless of how you and others cloud the issue. He may very cave as he does — but his mandate on this issue is barred by nothing — not even a ruling by the Supreme Court.

    The wall construction should have begun a year ago — granting time for planning, and design.

    No need to ban something as damaging as birthright citizenship — if your parents were not citizens — neither are you.

  25. The issue with the wall is not legal. It’s emotional, it sounds extreme (it’s not – we still have an immigration policy) and it’s in the wake of “our current” politically correct arena it sounds unfeeling. Unfeeling is having to force your own citizens to take a back seat to any foreigner in country for any reason.. What is unfeeling is displacing citizens because you have mistakenly placed their citizenship to skin color, IQ and an asundry of subjective or benign traits and are so wedded to it, not because it’s real, but because you operate among those who’s self esteem, identity and power is derived from your position and must have your way — regardless how misguided.

    Extreme is a moratorium on all immigration. Something I have favored since it was uncovered that that several of the 9/11 operators were here on expired VISAS.

    I am unclear why I would take anyone seriously concerning the legal authority of the executive who supported violating the

    sovereign spaces of states who were not a threat to the US. As I recall this authors advocacy for invading Iran, Iraq, Syria, actions in Libya, stirring up mayhem in the Ukraine and elsewhere in violation of international rules of conduct was his full support. There was no mention regarding the illegality of those policies. The nation is leadership are quite adept at bending the rules of what is or not legal based on their preferences of the projects they have in mind.

    Invading Iraq was legal — nevermind it’s strategic folly – especially if one is concerned about Iran —-

    Building a wall to replace the existing ineffective barrier as a security measure is illegal.

    Repairing immigration is not just a matter of building a wall it’s a comprehensive overhaul long over due and it is neither illegal, immoral or unwise. At 6 billion dollars considering the amount of money the country has sent down the tubes in legal illegal behavior, government waste – it’s cheap.

    Whoever is tasked can hire as many civilians as they need as long as they are US citizens.

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