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Editorial: President Trump Makes Right Call

On Thursday, the White House confirmed that President Donald Trump will sign the bipartisan budget compromise passed by Congress, which includes $1.375 billion for 55 miles of border barriers. The spending bill appropriates $328 billion overall and will fund the government through September 30, 2019, avoiding another shutdown.

President Donald Trump

However, the president made it clear that his signature will be applied reluctantly. To supplement the bill's $1.375 billion in funding for border barriers, Trump intends to declare a national emergency and tap unused money held by the Defense Department.

The authorization for this course of action is found within the Constitution of the United States and the National Emergencies Act of 1976.

The Constitution states that the president "shall be Commander in Chief of the Army and Navy of the United States." Accordingly, it is within the purview of the commander-in-chief, in this case Donald Trump, to utilize funds appropriated to the Defense Department, which is constitutionally under his management.

Furthermore, the National Emergencies Act of 1976, invoked 58 times in the past, emphasizes Trump's powers as the nation's commander-in-chief. It sets up a procedure for presidential declarations of emergency and allows for the executive to exercise extraordinary powers throughout the duration of the emergency.

The caveat is that none of the powers "become operative unless and until the President specifies the specific provisions of law under which" he will act, per Congress' 1976 analysis.

Therefore, Trump should invoke a national emergency and proclaim Title 10 § 2808, one of 123 available statutory authorizations, as his legal foundation. The code reads,

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act ... the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.

Upon the declaration of national emergency under Title 10 § 2808, Trump can turn to several options for financing the wall.

For one, the president could spend the $13.9 billion that was appropriated to the Army Corps of Engineers for disaster relief projects but left unspent.

The president could also tap the pool of $23 billion intended to be be used for military construction projects but left unspent: $10.3 billion was appropriated in the last budget and another $13 billion remains unspent from the previous five years.

As Trump considers his options, he should consider the wisdom of the Founders.

Article One of the Constitution reads that money cannot be drawn from the Treasury "but in consequence of appropriations made by law." If the president were to use military construction funds on a military construction project under a state of emergency, the action would clearly be in compliance with the Constitution (the expenditure would come as a "consequence of appropriations").

On the other hand, the constitutionality of the utilization of disaster relief funds would be ambiguous as it would be an apparent circumvention of Congress' power of the purse.

FDL Review is a constitutionally-minded publication, and we recognize the need for separation of powers as well as the prerogative of the federal government to combat illegal immigration. In fact, we would argue that is the obligation of Washington under article I, section 8 of the Constitution.

The incumbent president takes his duties seriously, and a declaration of national emergency would be a legitimate exercise of his statutory and constitutional authority. Even if he is hectored by Congress and the courts, Trump can make a legitimate case that the United States is in a state of emergency: Caravans from Central America have flocked to our nation's southern border en masse, overloading immigration enforcement.

With both the Constitution and statute on his side, along with glaring border chaos that must be addressed, the president would be justified in declaring a national emergency.