Donald Trump isn’t the only one making public statements that undermine his legal argument that a genuine national emergency exists at the southern border. His adviser on these matters, Stephen Miller, is also saying things the lawyers really wish he wouldn’t say. David French cites this segment from a Fox News interview and explains why it hurts Trump’s legal case for invoking the National Emergencies Act:
WALLACE: OK, here’s Article 1, Section 9, Clause 7, of the Constitution as written. “No money shall be drawn from the Treasury but in consequence of appropriations made by law.”
Isn’t what President Trump wants to do a clear violation of what the Founders — of what James Madison talked about as giving Congress the power of the purse?
MILLER: No, because Congress in 1976 passed the National Emergency Act and gave the president the authority, as a result of that, to invoke a national emergency in many different circumstances but among them the use of military construction funds.
And that was the point I was making earlier. If the president were to say we’re going to use military construction funds to, say, increase a perimeter around a base in Bagram, around a base in Syria, nobody would even say anything about it, and we have 4,000 troops on the border right now and as a result of that mission, they need to secure those areas where they’re patrolling.
And here’s why it damages Trump’s argument for legal authority to divert military construction funds to build the wall:
Why is this exchange so damaging? As I explained last Friday, the Trump administration is relying on a specific statute — 10 U.S.C. Section 2808 — to unlock approximately $3.6 billion in military construction funds to build the wall. This statute, however, doesn’t empower the president to build whatever structures he wants. It limits funding to emergencies that “requires the use of the armed forces” and even then only provides funds for “military construction projects” that are “necessary to support [the] use of the armed forces.” Moreover,“military construction” and “military construction projects” are terms precisely defined by a separate statute to mean improvements to a “military installation,” and a “military installation” means facilities like a “base, camp, post, station, yard, [or] center.”So, yes, putting a fortification around Bagram in Afghanistan or a base in Syria fits precisely within the scope of the statute. The bases are classic military installations in active war zones (thus, obviously requiring the use of the armed forces) and in a declared emergency, the president would absolutely have the power to move funds to fortify those installations. But what if there is no war zone? What if there’s no military installation to fortify? Well, here’s Miller to tell us that the statute allows Trump to build a permanent civilian structure (to be permanently manned by civilians) to protect the troops who are present on a temporary deployment in peacetime along the border of an allied nation. That’s absurd.
Exactly right. Trump chose to send troops to the border without justification, now he wants to use their presence there to justify building his wall. There is no actual emergency there, of course, nor is there any need for the military to be involved in any way. That’s why this rhetoric about an “invasion” is so dangerous. It militarizes a humanitarian crisis. This isn’t an invasion. No foreign government is trying to take over the country. These are just a few thousand desperate people fleeing oppression and violence, hoping to find respite in the country that claims to be against those things.