Even Congress’ research arm vouches for Trump’s border funding authority

Daniel Horowitz

The political class, including many conservative insiders, will look at you with wild eyes if you suggest that president has the authority to either declare an emergency at our border or use defense funds for an operation that should be the highest priority of national defense. But Congress’ own research arm makes it clear that such delegated authority to the president has been the norm since our Founding. While many have complained that the 1976 National Emergencies Act (NEA) is too broad, the Congressional Research Service (CRS) memo, which was first posted by the Daily Caller, makes it clear that that this act actually limited the president’s authority relative to what it was before: By 1973, Congress had enacted over 470 statutes granting the President special authorities upon the declaration of a “national emergency,” but had imposed no substantive or procedural limitations on either the President’s discretion to declare an emergency or the duration of such emergencies. After a Special Committee of the Senate concluded in a 1973 report that the President’s crisis powers “confer[red] enough authority to rule the country without reference to normal constitutional process,” Congress enacted the NEA in 1976 to pare back the President’s emergency authorities. But if you look at the text of the NEA, the only substantive burdens it placed on the president during such a declaration are to articulate which statue he is using, publish the proclamation in the federal register, and transmit to Congress all relevant regulations and expenditures under such declaration. It also forces the president to renew the declaration every year and authorizes Congress to disapprove of the declaration with a two-thirds vote in both houses. In other words, it mandated more transparency on the president relative to our prior history, but never imposed upon him legally enforceable conditions for determining whether the problem rises to the level of a national emergency. To give a sense of how common the use of this power is, the CRS notes that “31 national emergencies declared pursuant to the NEA are in effect, with Presidents having renewed certain emergencies for decades.” They also cite an analysis from the Brennan Center for Justice that confirms “136 statutes provide the President with emergency authorities that he can invoke pursuant to the NEA.” One of those authorities in effect today is the president’s power of blocking assets and prohibiting transactions with significant narcotics traffickers, which was put into effect in 1995 when the drug problem was a fraction of what it is today. Nobody can deny that the drug crisis is a national emergency, with tens of thousands of people dying every year from the drugs brought in by the cartels at our border. I’ve already explained that upon a declaration of emergency, the president has the power to use unobligated defense funds to construct infrastructure when he deploys soldiers at our border and when that construction, in this case the wall, is “necessary to support such use of the armed forces.” It is very hard to read the statute as placing justiciable limits on this determination, and as such, any question of whether the wall is needed for a military operation is a political one to be debated in Congress and not a legal one to be debated in court. The CRS notes that it would be unprecedented for a court to second-guess the president’s determination of what is needed to support a military operation. But as the CRS makes clear, the president’s authority to construct fencing to counteract transnational organized crime and drug trafficking is unlimited and does not even require the declaration of a national emergency...MORE

The 1973 Senate report referred to came out a year before I went to work for Senator Domenici. If you think Congress hasn't delegated a huge amount of authority to the Executive, just read the first three paragraphs of the Forward to the senate report:

FOREWORD

Since March 9, 1933, the United States has been in a state of declared national emergency. In fact, there are now in effect four presidentially proclaimed states of national emergency: In addition to the national emergency declared by President Roosevelt in 1933, there are also the national emergency proclaimed by President Truman on December 16, 1950, during the Korean conflict, and the states of national emergency declared by President Nixon on March 23, 1970, and August 15, 1971.

These proclamations give force to 470 provisions of Federal law. These hundreds of statutes delegate to the President extraordinary powers, ordinarily exercised by the Congress, which affect the lives of American citizens in a host of all-encompassing manners. This vast range of powers, taken together, confer enough authority to rule the country without reference to normal constitutional processes.

Under the powers delegated by these statutes, the President may: seize property; organize and control the means of production; seize commodities; assign military forces abroad; institute martial law; seize and control all transportation and communication; regulate the operation of private enterprise; restrict travel; and, in a plethora of particular ways, control the lives of all American citizens.

You can read Senate Report 93-549 by going here.