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Why President Trump Can And Should Declare A National Emergency At Our Southern Border (Part I)

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President Donald Trump should use the U.S. military to build the border wall along the United States’ international line with Mexico by declaring a national emergency, according to conservative analysts and commentators, supporters of President Donald Trump, and evidently off-the-record leaks from Trump Administration officials.

Many speculated whether President Trump would use his first-ever address to the nation from the Oval Office  to declare that emergency.  However, good political observation would suggest that Trump is laying out his case in multiple steps rather than a single shot.  Trump’s visit to the border on January 10 is likely to emphasize the dangers of an unprotected frontier, which will be gradually increasing heat on the question of danger to the nation.

Trump did — apparently for the first time — call on the American people to call their Members of Congress at (202) 225-3121.  This was a staple of Ronald Reagan’s success in getting a Democrat-dominated U.S. House of Representatives to pass Reagan’s conservative policies.  (Hint: Mr. President, you can’t just do that once.  Reagan called on his supporters to call Congress again and again and again.  Getting the American people to melt down the Capitol switchboard is not a one-off throw-away line.  It requires a sustained campaign.)

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First, Congress has given a president the power to declare a national emergency in 50 U.S.C. 1621:  ” (a) With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.”

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However, this group of laws allows the Congress to over-turn a president’s declaration of an emergency.  But clearly the Republican-controlled U.S. Senate would not join the Democrat-controlled U.S. House of Representatives:

50 U.S.C. §1622. National emergencies

(a) Termination methods

Any national emergency declared by the President in accordance with this subchapter shall terminate if—

(1) there is enacted into law a joint resolution terminating the emergency; or

(2) the President issues a proclamation terminating the emergency.

* * *

(c) Joint resolution; referral to Congressional committees; conference committee in event of disagreement; filing of report; termination procedure deemed part of rules of House and Senate

(1) A joint resolution to terminate a national emergency declared by the President shall be referred to the appropriate committee of the House of Representatives or the Senate, as the case may be. One such joint resolution shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee, unless such House shall otherwise determine by the yeas and nays.

* * *

Second,the declaration of an emergency allows the President to reprogram funds in the military budget.  See 33 U.S. Code § 2293 “Reprogramming during national emergencies.”  Federal funds appropriated by Congress can be “reprogrammed” to a different purpose than originally intended when Congress passed the appropriations bill.  It happens all the time. It will happen maybe dozens of times this year as it did last year and the year before that. Usually, these are very minor, even trivial, changes in which funds are applied to nearly-identical purposes due to changing circumstances or the like.  (Just as an example, money can’t be spent on a research project because a company goes out of business, so the money is used for the nearest equivalent purpose.)

The rules for reprogramming appropriations are vastly complex depending on the exact wording of particular appropriations bills, the regulations governing each individual department or agency, the nature of the proposed reprogramming of funds, etc.  Doing this will require true federal budgeting experts to carefully lay the groundwork and do this meticulously and correctly.  It cannot be done with bluster and bravado.

But remember:  When Trump signed the highly-controversial (as being excessive) omnibus bill a year ago with $700 billion for military spending, Trump telegraphed at the time — a year ago — that he might re-purpose some of that $700 billion to building a border wall.  One has to hope that the Swamp King Mitch McConnell, as the seasoned Majority Leader of the U.S. Senate knew how to massage the wording of that omnibus appropriations to smooth that path.

[UPDATE:  Frank Friday at American Thinker today adds a useful tidbit:  In Arizona, the massive Goldwater Air Force Bombing Range adjoins the Mexican border.  Illegal aliens have long been making the crossing here because it is wide open, but the bombing range is dangerous.  Building a wall to keep people from wandering into a bombing range is a reasonable use of Department of Defense funds.]

Third, what does it mean to “build the wall?”  Initial steps would (one imagines) include (a) surveying every mile of the border (drawing on existing databases of both mapping, geological conditions, and ownership records), (b) prioritizing where natural conditions are foreboding to both border-crossing and construction, (c) building access roads along the border where not already in place, (d) planning for and moving construction equipment into the area to travel along the entire border on access roads and be put to use, including sufficient fuel and other parts and supplies, and (e) planning for and providing living quarters for construction crews, probably as mobile homes capable of being moved all along the border.

Those all sound like legitimate roles for the U.S. Army Corps of Engineers.  Remember that the interstate highway system was built under President Dwight Eisenhower’s leadership partly because of its military value for moving military troops and equipment rapidly around the country to defend the nation.  The ability to rapidly move troops, tanks, and other military equipment along access roads along the border surely has military value in and of itself.

Fourth, preparatory work for building a wall also includes acquiring easements or ownership across land privately owned along the border.  This was one of the reasons that the Secure Fence Act of 2006 was never fully implemented.  Let’s say that a private rancher owns 10,000 acres that runs up to the international border.  The “designed to fail” approach is to try to acquire the entire 10,000 acres because those working on it do not want a wall to be built.  The standard legal and governmental approach would be to acquire an easement — not full ownership — over a strip maybe 500 feet wide right next to the border.

It is absurd and outrageous for any person to own the international border.  That should be immediately rejected as shockingly ridiculous.  The international border should be owned by the U.S. Government, including a healthy buffer of land next to the border.  If there were ever a war along the border, should we have to ask permission from private land-owners?  It is hard to imagine a stronger case for taking the land by eminent domain.

NOTE:   This article will be continued in a second installment focusing on the chances of court challenges to such actions by the President.  Stay tuned for Part II.

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