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Cronkite News Discusses a "National Emergency" with William C. Banks

Posted on Wednesday 2/6/2019
William C. Banks

Experts give 4 reasons why Trump can’t declare a national emergency to build a wall

(Cronkite News/Arizona PBS | Feb. 5, 2019) President Donald Trump has hinted there’s a “good chance” he will declare a national emergency at the southern border during his State of the Union address Tuesday in order to build a wall.

Experts, however, believe there are obstacles to using a national emergency to build a wall, which Trump has promised since he entered the race for the presidency in 2015.

Cronkite News reached out to Liza Goitein, a co-director of the Liberty and National Security Program at the Brennan Center for Justice in Washington, D.C., and William Banks, a professor emeritus of law and the founding director of the Institute for National Security and Counterterrorism at Syracuse University. Both also appeared at a Jan. 16 panel discussion hosted by the Brennan Center about presidential emergency powers ...

No. 3: Troops can only construct something for military purposes

Trump also has deployed active-duty troops to the border twice since late October, and part of their duties has been to fortify existing barriers. However, Banks said there are too many limitations for him to simply order a wall built by the military without congressional approval or appropriated funds.

“Military-construction authorities allow him to reallocate some authorized funds … but only for a military purpose,” Banks said. The president can only use Pentagon funds and can’t divert money from other U.S. appropriations, he said.

If the president were to unlock these military dollars by declaring a national emergency, Banks said “it might work.” He described how the Army Corp of Engineers would be the agency designing and building the wall, but the president has to persuade the courts in any legal challenge that the construction is for a military installation, which Banks called “a bit of a reach.”

“(The border) is a civilian operation,” Banks said. “We don’t mix law enforcement and the military here in the U.S.”

Senate Democrats introduced legislation Monday to block the president from using those same military funds “for the construction of barriers, land acquisition, or any other associated activities on the southern border without specific statutory authorization from Congress" ...

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