A prominent legal scholar has argued that old skeletons in former President Barack Obama’s closet will give President Donald Trump huge leverage in his legal battle for the border wall.
Fox News legal expert Jonathan Turley published an op-ed for The Hill titled, “Why Trump will win the wall fight,” where he makes a strong case as to why Trump will prevail in the courts after declaring a national emergency at the border last Friday.
In the matter of the border wall, Congress could not have been more clear where it was heading. It has long put itself on the path to institutional irrelevancy, and it has finally arrived. While I do not agree that there is a national emergency on the southern border, I do believe President Trump will prevail.
Turley went on to detail previous precedent set decades ago that the executive branch as the legal authority under the U.S. Constitution to declare national emergencies.
In 1976, however, Congress gave presidents sweeping authority to declare national emergencies under the National Emergencies Act. While this law allows for an override by Congress, the authority to declare a national emergency is virtually unfettered. It is one of many such laws where Congress created the thin veneer of a process for presidential power that, in reality, was a virtual blank slate.
At the same time, Congress has continued to give the executive branch billions of dollars with few conditions or limitations. That is why President Obama was able not only to go to war in Libya without a declaration but to fund the entire war from billions of undedicated funds
Turley then details the court precedent that Democrats will rely on if they sue Trump, which they have argued they will do.
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Turley writes that a previous case involving Obama a few years ago laid the framework for Trump to prevail in court in the border wall fight.
Democrats have indicated they will rely on the ruling in House of Representatives versus Sylvia Burwell, in which a court not only ruled that the House of Representatives had standing to sue over executive overreach but that Obama violated the Constitution in ordering the payment of billions to insurance companies without authorization from Congress.
I was the lead counsel for the House of Representatives in that case. Ironically, Pelosi vehemently opposed the litigation as a frivolous and unfounded challenge to presidential authority. We won.
Superficially, the Burwell case may look like the current controversy. Obama sought funds from Congress and, when unsuccessful, acted unilaterally. The difference is that Obama ordered the money directly from the Treasury as a permanent appropriation, like the money used annually to pay tax refunds. Congress never approved such payments.
Conversely, Trump is using appropriated funds. Like the authority under the National Emergencies Act, Congress gave this money to the executive branch without meaningful limits. Trump now has more than $1.3 billion in newly approved funds for border protection. He has identified about $8 billion in loosely dedicated funds for military construction, drug interdiction and forfeitures. Even if a court disagreed with the use of some of this money, Trump has the authority and funds to start major construction of the wall.
Turley rounds out his piece arguing that Democrats will “fail in spectacular fashion if the case gets to the Supreme Court.”
If it plays out that way, the White House has estimated that Trump will use around $8 billion from emergencies and couple it with the $1.375 billion in the recently signed congressional spending deal.
So, Trump is looking to use around $9.4 billion toward the wall, which could build roughly half of it on the U.S.-Mexico border.
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