Friday morning, President Donald Trump declared a national emergency in order to unilaterally fund more miles of border fencing than this week's omnibus compromise "deal" otherwise permits. The Daily Wire reported:
President Trump on Friday announced that he is declaring a national emergency at the U.S.-Mexico border, and he will redirect up to $8 billion in federal money to build a border barrier to keep foreigners from illegally entering the country.
While Democrats are expected to fight the move — and likely will seek to halt the plan via court or congressional action — Trump declared that, as president, he has unilateral authority to redirect federal funds in order to stem a crisis.
The National Emergencies Act of 1976 says the president "has available certain powers that may be exercised in the event that the nation is threatened by crisis, exigency, or emergency circumstances (other than natural disasters, war, or near-war situations)," the Congressional Research Service says.
Following Trump's Rose Garden announcement, the American Civil Liberties Union (ACLU) wasted little time in announcing its plan to sue the Trump Administration. The ACLU press release reads, in relevant part:
The ACLU will argue that President Trump’s use of emergency powers to evade Congressional funding restrictions is unprecedented and that 10 U.S.C. § 2808, the emergency power that Trump has invoked, cannot be used to build a border wall. Congress restricted the use of that power to military construction projects, like overseas military airfields in wartime, that "are necessary to support" the emergency use of armed forces.
Many conservative legal scholars disagree with the ACLU's analysis. In particular, John Eastman of the Claremont Institute and John Yoo of Berkeley Law and the American Enterprise Institute, each of whom formerly clerked on the U.S. Supreme Court for Justice Clarence Thomas, have both expressed their belief that President Trump's national emergency is being declared pursuant to Congress' delegated statutory authority. There is also the separate threshold question as to whether the ACLU would even have proper standing to sue, under Article III of the U.S. Constitution.
The Washington Examiner reports that Trump's national emergency declaration will allow him to potentially fund 234 more miles of border fencing. The declaration, per the Examiner, opens up an additional $6.6 billion in funding that may be used for the wall — far more than the $1.375 billion that the omnibus compromise "deal" provided.
The ACLU has recently come under fire for its opposition to S. 1, the pro-Israel piece of legislation that recently passed the U.S. Senate by a 77-23 margin. The bill allows for state and local governmental entities to refuse to contract with entities whose commercial conduct is intertwined with the anti-Semitic "boycott, divest, and sanctions" movement against Israel. Yesterday, Jonathan Tobin had the following to say about the ACLU, at Jewish News Syndicate:
The ACLU claims this is a defense of the First Amendment. The Constitution protects the right of those who advocate for Israel’s destructions or for boycotts of it to express their opinions. But there is no constitutional right to engage in commercial conduct that discriminates against a class of persons or those associated with the only Jewish state on the planet. To the contrary, the states and the federal government are on firm constitutional ground to deem such discrimination illegal, as is the case when it comes to similar actions directed at African-Americans or other ethnic or religious groups. ...
That the ACLU would weigh in on behalf of BDS is deeply troubling. BDS is a movement steeped in anti-Semitism, as its supporters’ statements and actions have repeatedly proved. The struggle against it has nothing to do with free speech — and everything to do with anti-Semitism — since it is a concept based on the notion that Israel, alone of all countries in the world, deserves to be eliminated.