Trump has repeatedly floated the idea of declaring a state of emergency at the southern border and diverting funds from the military budget to have the military build the wall if Congress doesn’t fund it the conventional way. Bruce Ackerman, one of the foremost constitutional scholars in the country, explains why he can’t actually do that.
Begin with the basics. From the founding onward, the American constitutional tradition has profoundly opposed the president’s use of the military to enforce domestic law. A key provision, rooted in an 1878 statute and added to the law in 1956, declares that whoever “willfully uses any part of the Army or the Air Force” to execute a law domestically “shall be fined under this title or imprisoned not more than two years” — except when “expressly authorized by the Constitution or Act of Congress.”Another provision, grounded in a statute from 1807 and added to the law in 1981, requires the secretary of defense to “ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)” must “not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”
In response to the Hurricane Katrina disaster in New Orleans, Congress created an express exception to the rules, and authorized the military to play a backup role in “major public emergencies.” But in 2008 Congress and President Bush repealed this sweeping exception. Is President Trump aware of this express repudiation of the power which he is threatening to invoke?
Of course he isn’t, nor would he care if he did. Trump just thinks that he has unlimited authority as president and can do anything he damn well pleases. He knows less about separation of powers and the Constitution in general than I do about Mongolian folk music. The very idea that there might be limits on his authority is baffling to him, and in Trumpworld, if he doesn’t think such restrictions exist then they magically don’t exist.