Trump Declared a National Emergency At the Border. I Asked 11 Experts If It’s Legal.

Jed Shugerman was quoted in a Vox article about President Trump’s decision to declare a national emergency at the border.

President Donald Trump just declared a national emergency in order to bypass Congress and fund his wall on the southern border.

The president has hinted for several weeks that this option was on the table, but it was never clear if he would actually go through with it, in part because it sets a dangerous precedent and will almost certainly be challenged in the courts.

But the president failed to strike a deal with Democrats that would give him the $5 billion he wanted to build the wall, so here we are. Now there are at least two pressing legal questions: Does Trump have the constitutional authority to do this? And will his declaration survive the challenge it will likely receive in the courts?
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Jed Shugerman, law professor, Fordham University

For those wondering about Trump invoking a national emergency: Remember he also ordered [Robert] Mueller’s firing twice (allegedly). His lawyers declined. Trump can’t do any law stuff on his own. How much can Stephen Miller do by himself?

Even then, litigation will run out the clock, even if the plaintiffs challenging the wall don’t ultimately win on the merits. There are many claims that should be valid enough to yield injunctions delaying construction and spending. First, there will be litigation by members of Congress, which will turn on the complexities of standing. Second, if Trump shifts funds from other appropriated projects to the wall, some contractors losing funds arguably have standing to challenge the emergency’s validity. Third, most of the wall would be built on private property, and property owners can challenge the validity of this “public use” under eminent domain.

Even if they lose in the end on the law, it seems likely to me that Trump will run out of time. And I think even the wall’s most ardent supporters understand Trump wasted two years of GOP control of Congress and wasted America’s longest government shutdown to be left with this dead-end backup plan.

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