Donald Trump risks legal fight with 'national emergency' threat over wall

WASHINGTON, Feb 14 (Reuters) - President Donald Trump will almost certainly face legal challenges over his decision to declare a national emergency to get additional funding for a U.S.-Mexico border wall, circumventing the power of Congress to set spending policy.

Legal scholars say it is unclear how such a step would play out, but they agree a court test would likely focus on whether an emergency actually exists on the southern border and on the limits of presidential power over taxpayer funds.

Trump is unhappy with a bipartisan border security bill that is going through Congress to avert another government shutdown, because it contains only a fraction of the funds he demanded for his promised border wall. The White House said Trump would sign the bill but declare a national emergency to try to obtain funds for the wall.

That will likely trigger a long legal fight possibly stretching into Trump’s 2020 re-election bid, and embolden critics who already accuse him of authoritarian tendencies and unpredictable swerves in policy-making.

Congressional Democrats are already vowing legal challenges. They have balked at giving Trump money for what they say is a wasteful and unnecessary wall.

Trump made his promise to build a wall and have Mexico pay for it a centerpiece of his 2016 presidential campaign. The Mexican government has refused to pay.

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President Trump visits border wall prototypes amid protests
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President Trump visits border wall prototypes amid protests
US President Donald Trump is shown border wall prototypes in San Diego, California on March 13, 2018. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
People hold signs during a protest while standing in front of the current border fence and near the prototypes of U.S. President Donald Trump's border wall, in Tijuana, Mexico March 13, 2018. The sign on the right reads "Trump, walls can be jumped over". REUTERS/Edgard Garrido
US President Donald Trump inspects border wall prototypes in San Diego, California on March 13, 2018. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
People attach a sign reading "Trump, stop the mass deportations" to the current border fence and near the prototypes of U.S. President Donald Trump's border wall, during a protest in Tijuana, Mexico March 13, 2018. REUTERS/Edgard Garrido
US President Donald Trump's motorcade arrives at the border fence in San Diego, California on March 13, 2018. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
People hold signs reading "No to the wall" and "Trump, put your wall, but in your territory, not in ours", during a protest near the prototypes of U.S. President Donald Trump's border wall, seen behind the current border fence, in Tijuana, Mexico March 13, 2018. REUTERS/Edgard Garrido
US President Donald Trump is shown border wall prototypes with White House Chief of Staff John Kelly (L) in San Diego, California on March 13, 2018. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
A man holds a sign reading "Trump, put your wall, but in your territory, not in ours", during a protest near the prototypes of U.S. President Donald Trump's border wall, seen behind the current border fence, in Tijuana, Mexico March 13, 2018. REUTERS/Edgard Garrido
US President Donald Trump arrives to inspect border wall prototypes in San Diego, California on March 13, 2018. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
People hold signs reading "No to the wall, Trump," and "Trump, we are not enemies of the USA" during a protest near the prototypes of U.S. President Donald Trump's border wall, seen behind the current border fence, in Tijuana, Mexico March 13, 2018. REUTERS/Edgard Garrido
US President Donald Trump speaks during an inspection of border wall prototypes in San Diego, California on March 13, 2018. Donald Trump -- making his first trip to California as president -- warned there would be 'bedlam' without the controversial wall he wants to build on the border with Mexico, as he inspected several prototype barriers. The trip to the 'Golden State' -- the most populous in the country and a Democratic stronghold -- was largely upstaged by his own announcement that he had sacked Secretary of State Rex Tillerson. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
Mexican Federal Police officers stand guard the Mexican side of the Mexico-US border in Tijuana, Baja California state, from where prototypes of the border wall, which US President Donald Trump will inspect on the outskirts of San Diego, in the US, are visible on March 13, 2018. Fresh off a cabinet reshuffle, President Donald Trump was headed for Democratic stronghold California on Tuesday to inspect prototypes of the controversial border wall with Mexico that was the centerpiece of his White House campaign. / AFP PHOTO / GUILLERMO ARIAS (Photo credit should read GUILLERMO ARIAS/AFP/Getty Images)
People hold signs reading "Trump, we will not pay for the wall" and "Trump, stop the mass deportations" near the border fence between Mexico and the U.S., in Tijuana, Mexico March 13, 2018. REUTERS/Edgard Garrido
Journalists gather at a rooftop near the US -Mexico border as President Trump is expected to inspect the border wall prototypes built outskirts San Diego, in Tijuana, Baja California State, Mexico, on March 13, 2018. Fresh off a cabinet reshuffle, President Donald Trump was headed for Democratic stronghold California on Tuesday to inspect prototypes of the controversial border wall with Mexico that was the centerpiece of his White House campaign. / AFP PHOTO / GUILLERMO ARIAS (Photo credit should read GUILLERMO ARIAS/AFP/Getty Images)
U.S. police officers use a ladder to climb up a truck parked in front of the prototypes of U.S. President Donald Trump's border wall, on the U.S. side of the current border fence, in Tijuana, Mexico March 13, 2018. REUTERS/Jorge Duenes
An agent faces Mexico while standing by the vehicle of U.S. President Donald Trump at the border near San Diego, California, where Trump reviewed wall prototypes designed to serve as a protective barrier against illegal immigrants, drugs and smuggled weapons, March 13, 2018. REUTERS/Kevin Lamarque
A U.S. Customs and Border Protection (CBP) Border Patrol Agent sits on horseback near U.S. President Donald Trump's motorcade during a tour of U.S.-Mexico border wall prototypes near the Otay Mesa Port of Entry in San Diego, California. U.S., March 13, 2018. REUTERS/Kevin Lamarque
TIJUANA, MEXICO - MARCH 13:Anti-Trump protestors demonstrate on the Mexico side of the border before the arrival of the U.S. President to inspect the prototypes of the proposed border wall on March 13, 2018 in Tijuana, Mexico. (Photo by Wally Skalij/Los Angeles Times via Getty Images)
The motorcade carrying US President Donald Trump drives past a US-Mexico border fence as Trump head for an inspection of border wall prototypes in San Diego, California on March 13, 2018. Donald Trump -- making his first trip to California as president -- warned there would be 'bedlam' without the controversial wall he wants to build on the border with Mexico, as he inspected several prototype barriers. The trip to the 'Golden State' -- the most populous in the country and a Democratic stronghold -- was largely upstaged by his own announcement that he had sacked Secretary of State Rex Tillerson. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
Mounted Border Patrol agents are seen as US President Donald Trump inspects border wall prototypes in San Diego, California on March 13, 2018. Donald Trump -- making his first trip to California as president -- warned there would be 'bedlam' without the controversial wall he wants to build on the border with Mexico, as he inspected several prototype barriers. The trip to the 'Golden State' -- the most populous in the country and a Democratic stronghold -- was largely upstaged by his own announcement that he had sacked Secretary of State Rex Tillerson. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
US President Donald Trump inspects border wall prototypes in San Diego, California on March 13, 2018. Donald Trump -- making his first trip to California as president -- warned there would be 'bedlam' without the controversial wall he wants to build on the border with Mexico, as he inspected several prototype barriers. The trip to the 'Golden State' -- the most populous in the country and a Democratic stronghold -- was largely upstaged by his own announcement that he had sacked Secretary of State Rex Tillerson. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
US President Donald Trump holds up a poster of before and after photos of a segment of the border wall prototypes with Chief Patrol Agent Rodney S. Scott (R) in San Diego, California on March 13, 2018. / AFP PHOTO / MANDEL NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
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PRESIDENTIAL DISCRETION

Under the Constitution, decisions about spending taxpayer funds and creating policy are typically made by Congress.

But a 1976 law allows the president to bypass Congress and redirect funds in the event of a national emergency. The National Emergencies Act does not define “emergency,” giving the president broad discretion to declare one, legal experts said.

The law empowers Congress to override an emergency declaration, but that requires action by both chambers, which would be hard to get since the Senate is run by Trump’s fellow Republicans and the House of Representatives by Democrats.

The United States currently has about 30 national emergency proclamations in effect, including ones related to the Iran hostage crisis of 1979 and the swine flu pandemic in 2009.

Congress has made a wide range of special powers available to a president who declares a national emergency.

One law allows the president to redirect U.S. Department of Defense construction funds that have not yet been allocated.

Another enables the U.S. Army to halt civil projects and instead apply the funds and personnel to projects “essential to the national defense.”

LITTLE PRECEDENT

There are few court cases on the scope of the president’s emergency powers, and legal experts are split.

Robert Chesney, a professor of national security law at the University of Texas, said a legal challenge on those grounds might succeed but that the courts typically showed deference to the president on national security matters.

Elizabeth Goitein, a lawyer at the Brennan Center for Justice, said there were strong arguments that border wall construction is impermissible under various statutes granting the president emergency powers.

Individuals or businesses with contracts canceled because of a redirection of military funds might be better placed to challenge the president in court, as would private landowners whose property might be seized, Chesney said.

FINDING THE MONEY

A practical issue for Trump, even if he could credibly argue an emergency exists, is that he would need to get his wall money out of whatever funds are left over from a pool of about $10.4 billion in military construction projects during the current fiscal year, which ends on Sept. 30.

The U.S. military has not disclosed how much funding might be left over in its military construction budget. It was unclear whether any cash still available would be enough to make significant headway in building the border wall.

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