Law: National Emergencies

The President has claimed if the shutdown continues, he may declare a national emergency and get his wall built that way.

I don’t think people should worry. I have a hard time believing courts would smile on this exercise of power. Immigration has always been a difficult issue for America and likely always will, but absent declared states of war there’s literally no precedent for the national emergency theory. Allowing the President to claim this particular moment is a national emergency would open the door to allowing the United States to devolve to a state of permanent national emergency. That’s the sort of thing courts are reluctant to sign off on.

This doesn’t change the fact it’s an authoritarian move as disgusting as it is blatant. “The legislature won’t let me do what I want, so I’m declaring them irrelevant and doing what I want” is the stock-in-trade of tinhorn dictators. It’s offensive, it’s unamerican, it’s beneath our national dignity. But the fact our President is a would-be Putin isn’t exactly news, either.


  1. I’ve seen some implications that the WH is looking at directing Army Corps of engineer funds from California towards the wall. I haven’t found much on how this would work legally, but at least naively it seems that while Congress has the power of the purse, the WH might actually be able to do this? Would the courts look at that sort of shuffling of priorities as unkindly as they would for a declaration of emergency? I see a few articles that seem to think this is a plausible tactic, but at the same time I am not confident there’s not some obvious, first order, legal explanation that’s just being left out that kills the whole deal.

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