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Eric Davis: Trump’s wall gambit is likely to fail

President Trump intends to declare a “national emergency” and order the military and other federal agencies to build a wall on the southern border if Congress does not enact an appropriations bill including the full $5.7 billion for wall construction he wants. Such a move is quite likely to be overturned by the federal courts.
A useful historical comparison comes from 1952 when, during the Korean War, the United Steelworkers Union planned to strike against the steel manufacturers. Fearing that a shutdown of steel production would adversely affect the war effort in Korea, President Truman ordered the Commerce Department to seize the steel mills and run them for the government. Truman justified this action by virtue of the “inherent” powers of the presidency and the president’s role as commander-in-chief.
The steel companies sued the government, and the case ended up being decided by the Supreme Court in June 1952. By a vote of 6 to 3, the justices ruled against Truman, saying that the president had no power to seize private property, even during wartime, in the absence of either a specific provision of the Constitution granting him that authority or statutory authority conferred on him by Congress.
The same framework used by the Supreme Court to decide the steel seizure case could be used today to analyze Trump’s claim of “inherent” presidential power to order the building of a border wall.
The powers of the president are set forth in Article II of the Constitution. They include acting as commander-in-chief, granting pardons, asking for the views of the principal officers of government departments, negotiating treaties, nominating people to serve as federal judges and to executive positions, recommending measures to Congress in the State of the Union message, and “taking care that the laws be faithfully executed.” There is no power in Article II that could be construed as giving the president the authority to reallocate federal funds to order a particular project to be completed, or to spend money that has not been appropriated by Congress for a particular purpose.
In deciding the steel seizure case, the Supreme Court also looked at the actions of Congress to see if any statutes could be read as giving the president the power to seize manufacturing plants during a time of national emergency. The Court determined that such statutes did not exist. Indeed, Congress had considered giving the president such power and had decided not to do so. Congress had enacted an alternative procedure to deal with strikes in nationally important industries. The Taft-Hartley Act allowed the government to seek a nationwide injunction against a strike that could damage the national economy or nationally important industries.
Justice Robert Jackson, in an important concurring opinion, noted that there were three types of situations involving congressional and presidential powers: those in which the president acted with express or implied authority from Congress, those in which Congress had been silent, and those in which Congress chose a different course of action from the president. Unilateral presidential action became less justifiable as one moved down this list of situations.
If Congress ends up sending a bill to Trump that includes funds for border security, but not a physical wall, this would be a situation in Jackson’s third category. Congress would have deliberately chosen a different course of action from the president. According to Jackson’s framework, unilateral presidential action would have its weakest justification when Congress had considered the president’s proposal, but set it aside in favor of a different approach.
Trump has tried to act unilaterally in many areas in addition to the wall — travel bans, tariffs, and transgender troops in the military, among others. This appears to be his preferred approach to the presidency. He does not recognize, nor does he understand, the idea of constitutional limitations on the presidency within a system of separated and shared powers.
Eric L. Davis is professor emeritus of political science at Middlebury College.

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