President Trump’s extraordinary action of proclaiming a national security emergency this morning is fraught with problems. TCS president, Ms. Ryan Alexander had this statement: 

Just because the law grants the president broad emergency powers does not mean he should use them. The diversion of funds to build a border wall is a bad idea for many reasons.

• The Constitution clearly gives Congress the power of the purse
• We already have physical barriers on more than 650 miles of the border
• The situation on the border is not an emergency

We can’t afford to waste money on political promises that are bad policy.

Our analysts have been combing through the 643 words in the declaration and following the statutory references so you don’t have to.

The highlights (or lowlights, depending on your perspective) are as follows:

As predicted, the president relied on the National Emergencies Act as authority to declare that the situation at the southern border is a national emergency.

He also declares that the military may use the “Ready Reserve”, which allows the secretary to call retired and other reservists back to active duty to complete the task.

Finally, he relies on the emergency construction authority in 10 USC sec 2808, which allows the Secretary of Defense to undertake construction projects by diverting appropriated but unobligated funds for military construction funds and family housing construction funds. This authority is given without regard to any other provision of law, so it is a very broad waiver.

For more context on how this declaration would impact existing MILCON spending priorities, we’ve put together this handy overview.

That broad waiver includes the Antideficiency Act, which says that money can only be spent on things for which it has been specifically appropriated. Does it waive the underlying Constitutional prohibition that the president does not get to spend money Congress has not appropriated?

Can the president do what he did this morning? Short answer, yes. But the longer answer is although the president’s emergency powers are quite broad, it may not stand up in court. The Constitution is crystal clear – Congress, not the president, has the power of the purse.

The potential legal challenges do not, of course, include the many political tripwires awaiting the president. Perhaps you have seen the recent reports about problems with military housing? Certainly doesn’t make that pot of money an attractive one to raid. Any military construction funding that is diverted means that somewhere, in some congressional district, a project that has been in the works isn’t going to proceed as planned. And we haven’t yet gotten to the political landmine of eminent domain that awaits taking any land.

A lot of lawyers are going to be busy writing up long documents. This is just the beginning of the border battle.