Debates over the proper scope of executive power in the United States have been a feature of U.S. law and politics dating back to before the nation’s founding. Article II of the Constitution vests the president with “the executive power” and the power to act as the military’s Commander in Chief, but the post-9/11 presidency has been characterized as a striking expansion of executive power, particularly in the area of national security.
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Understanding the current legal controversies over “emergencies” and the border wall requires recognizing how the Supreme Court’s 1983 decision in INS v. Chadha destroyed the scheme Congress had created for determining whether emergencies existed.
Sixteen states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Virginia and Michigan) have filed suit against President Trump over his declaration of national emergency. The complaint is available here and below.
President Trump seems to have relied on the White House counsel’s office for advice on declaring a national emergency—but then disregarded the office’s repeatedly expressed doubts about the legal basis for the declaration.
From a detached legal perspective, Trump’s actions are not terribly controversial or worrisome. In context, they are.
When litigation comes, the resolution of the president's invocation of a national emergency and of 10 USC § 2808 will turn to no small extent on the concept of judicial deference.
When the president issues an executive order or a proclamation, federal regulations require the attorney general to review the resulting document, and the attorney general has delegated this authority to the Justice Department’s Office of Legal Counsel.
As part of its effort to construct a border wall, the Trump administration has invoked a statutory delegation of authority signed into law by President Obama after the 2016 election.
The president signed spending legislation appropriating over a billion dollars for constructing a wall, along with a declaration of emergency to authorize an additional $6.5 billion.
There are a limited number of cases in which Congress has mandated that the president affirmatively engage in military activities in the face of presidential opposition to doing so.
These letters, sent by the Department of Justice to members of Congress expressing the department’s “views” on draft legislation, show that the Trump administration has been energetic in asserting exclusive presidential powers.