Skip to main content

Sign up for our newsletter.

Quality journalism. Progressive values. Direct to your inbox.

Corporate gatekeepers and big tech monopolists are making it more difficult than ever for independent media to survive. Please chip in today.

 U.S. President Donald Trump is joined by Vice President Mike Pence, Homeland Security secretary, Kirstjen Nielsen, House Minority Leader Kevin McCarthy (R-CA) and Rep. Steve Scalise (R-LA) while speaking to the media after a meeting with Congressional leaders about ending the partial government shutdown, in the Rose Garden at the White House on January 4, 2019 in Washington, DC. (Photo: Mark Wilson/Getty Images)

Legal Scholars to Trump: No, You Cannot Declare Emergency to Build Wall That Public Doesn't Want and Isn't Needed

"The American constitution does not contemplate such presidential unilateralism."

Jon Queally

After President Donald Trump on Friday claimed he could declare a national emergency in order to assert total control over the border and use existing taxpayer money to build a wall he has repeatedly told the American public that Mexico would pay for, legal experts are pointing out that Trump has no authority under the Constitution to do any such thing.

"Of all the constitutional norms that this president has upset, this, ultimately, may be the most significant." —Lawrence Lessig, Harvard University"I can do it if I want," Trump declared Friday. "We can call a national emergency because of the security of our country. We can do it. I haven't done it. I may do it."

Calling Trump's demand for the wall "constitutionally illegitimate" in an op-ed for the Guardian in the wake of the president's "bizarre" press conference outside the White House, Harvard law professor Lawrence Lessig argued that no reading of the nation's governing document "would ever uphold the view that a president can stop the functioning of government, to insist upon a program unsupported by the public or unrequired by the constitution."

Lessig writes:

Of all the constitutional norms that this president has upset, this, ultimately, may be the most significant. And it is this innovation that the Republicans especially should check. For do they now concur in the precedent that a president has the constitutional authority to insist upon whatever policy he likes, regardless of its support in the public? If a Democrat were elected on the promise to establish single-payer healthcare, does she then have the moral authority to shut down the government until Congress nationalizes the insurance industry? Or directly regulates pharmaceuticals? If she were elected on the promise to address climate change, can she stop the ordinary functioning of government until Congress passes a carbon tax?

Of course not, Lessig concludes: "The American constitution does not contemplate such presidential unilateralism."

If there was money that Trump could use to build a wall, many experts agree it will likely come from undesignated Pentagon funds. But speaking with NBC News, Matt Dallek, professor at Washington University's Graduate School of Political Management and an expert in presidential power, said that Trump can "declare some kind of national emergency, but what it would allow him to do legally is a totally different question."

As the Trump's intransigence continues—and after admitting behind closed doors that he could not submit to the Democrat's demands because it would make him "look foolish" if he did—NBC News reports on how the concrete impacts are being increasingly felt by those federal workers locked out of working or working without pay.

Discussing the issue on MSNBC on Saturday afternoon, legal scholar and former congresswoman Elizabeth Holtzman said that her reading of the relevant statute is that while Trump has some authority to declare a national emergency, as Dallek noted, this doesn't qualify as one of those times and that the president has no authority to re-direct money already appropriated by Congress for other purposes towards his wall.

"This just another one of his hair-brained schemes," Holtzman said. "And we know, time after time, his cruel, unnecessary, horrifying policies on the border—whether its separation of children from their parents or whether it's stopping people from coming in under the asylum laws or whether its his original total ban on Muslim immigration—all of those were shut down by the courts. So I think the reason he's doing this now, in this way, is he's very worried about whether he has authority and he's trying to threaten Congress. It's not going to work. The Democrats are not going to support a wall."

As a result, Holtzmann said, it is the 800,000 federal workers and their families who are being held hostage by Trump's cruelty. "Are they going have enough money to put food on the table? Is their house going to be taken away? Is their mortgage going to be forclosed on? I mean, what is he doing to this country? For his image? That's an outrage."

As Lessig argued in his op-ed, Trump "does not act for the people. He does not act to defend the constitution. He acts to avoid, as he acknowledged to Senator Chuck Schumer, 'seeming foolish.'"


Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.

We've had enough. The 1% own and operate the corporate media. They are doing everything they can to defend the status quo, squash dissent and protect the wealthy and the powerful. The Common Dreams media model is different. We cover the news that matters to the 99%. Our mission? To inform. To inspire. To ignite change for the common good. How? Nonprofit. Independent. Reader-supported. Free to read. Free to republish. Free to share. With no advertising. No paywalls. No selling of your data. Thousands of small donations fund our newsroom and allow us to continue publishing. Can you chip in? We can't do it without you. Thank you.

'No Time to Waste': New Nationwide March For Our Lives Protests Set for June 11

"Together, we rose up four years ago. One million of us demanded change. We built a movement. We voted for new leaders. And the gun deaths increased. Now is the moment we march again."

Brett Wilkins ·


'We Need Fewer Guns in Schools, Not More': Teachers Reject GOP Call for Armed Educators

"Teachers should be teaching, not acting as armed security guards," the president of a leading teachers' union asserted in the wake of the Robb Elementary School massacre in Texas.

Brett Wilkins ·


Faith Leaders, Teachers Mobilize for Protests at NRA's Houston Meeting in Wake of Uvalde Massacre

"Don't look away," said one advocacy group. "Rally against the NRA."

Julia Conley ·


NY Appeals Court Rules Trump and Two of His Kids Must Testify in Financial Fraud Case

"Our investigation will continue undeterred because no one is above the law," said New York Attorney General Letitia James.

Kenny Stancil ·


After Racist Massacre in Buffalo, Senate GOP Blocks Domestic Terrorism Bill

"There are a lot of MAGA Republicans for whom no amount of gun violence... will ever, ever convince them to take any action," said Senate Majority Leader Chuck Schumer.

Jake Johnson ·

Common Dreams Logo