Ivan Hoffman, B.A., J.D.

          The Constitution expressly sets out the 3 branches of government and describes, mandates, that each branch exercise its duties to act as a check and balance against the others.  Specifically, the first article of the Constitution speaks to the powers given to the legislative branch to act as a check on the otherwise potential “kingly” powers of the executive branch.

           In 1976 Congress passed the National Emergency Powers Act, found in 50 United States Code sections 1601-1651.  The statute gives very broad powers to a President to declare a national emergency and to maintain that national emergency with some oversight on the part of the legislature over those powers.  

The Details 

          Prior to the enactment of the statute, presidents had nearly unfettered powers to declare a national emergency.

          In the 1953 Supreme Court decision in Youngstown Sheet and Tube vs. Sawyer, 343 U.S. 579, the Court had to decide whether President Truman’s seizure of steel mills based upon the strike of the steel workers during the Korean War was constitutional.  The Court ruled that it was not and stated: 

The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. (at 585)

           The Court also discussed the separation of powers issues and stated: 

It is clear that, if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a President . . ."; that "he shall take Care that the Laws be faithfully executed", and that he "shall be Commander in Chief of the Army and Navy of the United States." (at 587) 

          The Court ruled that those provisions did not authorize President Truman’s actions.  It stated further in part: 

After granting many powers to the Congress, Article I goes on to provide that Congress may 

make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.  (at 588)

          Keep in mind however, that this case was decided long before the enactment of the National Emergencies Powers Act so the issue is whether, by doing so, Congress has given the executive these powers. 

          There are a wide variety of statutes that authorize the declaration of an emergency and the National Emergencies Powers Act requires a President to state expressly the statutory basis for the declaration of an emergency and to notify Congress about the same.  The Congress has the power, through a joint resolution, to declare an end to the emergency (50 USC section 1622 (b) and and section (c)).  

          Absent the above joint resolution, a President has the power to continue the emergency unless he or she fails to publish a notice to continue it in the Federal Register and notify Congress annually that it is to remain in effect.  

          However, the statute contains no definition of what constitutes an “emergency.” The dictionary definition requires that the event be sudden, urgent and unexpected.  “Illegal” immigration to the United States has been going on since there have been laws against the same and thus it is somewhat hard to understand the need for a wall at this time as being sudden, urgent or unexpected.  That will likely be one of the legal issues in any court challenge. 

          As indicated, there are a number of statutes that authorize the declaration of an emergency but the one most likely to be relied on by a President in regard to the building of a wall across the southern land border of the United States is probably the provisions related to when the military can be used to construct the same, found in 10 USC sections 2803 and 2808 (a).   

          Section 2803 provides in part: 

(a)   Subject to subsections (b) and (c), the Secretary concerned may carry out a military construction project not otherwise authorized by law if the Secretary determines (1) that the project is vital to the national security or to the protection of health, safety, or the quality of the environment, and (2) that the requirement for the project is so urgent that deferral of the project for inclusion in the next Military Construction Authorization Act would be inconsistent with national security or the protection of health, safety, or environmental quality, as the case may be. [emphasis added] 

          Section 2808 provides in part: 

(a)   In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.  Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated. [emphases added] 

          The last sentence of the above statute allows the re-allocation of funds that were previously authorized by Congress for military construction. 

          “Military Construction” is defined in section 2801 as follows: 

(a)   The term “military construction” as used in this chapter or any other provision of law includes any construction, development, conversion, or extension of any kind carried out with respect to a military installation, whether to satisfy temporary or permanent requirements, or any acquisition of land or construction of a defense access road (as described in section 210 of title 23). [emphasis added] 

          “Military Installation” is also defined in that section and means: 

(4) The term “military installation” means a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department or, in the case of an activity in a foreign country, under the operational control of the Secretary of a military department or the Secretary of Defense, without regard to the duration of operational control. [emphasis added] 

          Among the many issues are these: 

1.      Is the construction of a wall an “emergency” such that it falls within the scope of the Act?


2.      If so, is the construction of a wall “military construction” part of a “military installation?”


3.      Does the Posse Comitatus Act limit the use of the military in this regard? (Read “The Posse Comitatus Act.”)


a.       That Act, in section 18 USC 1385, reads in part: 

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. [emphasis added] 

          So while it may be that military construction of a wall may be an attempt to enforce the civil laws of the United States and thus possibly prohibited by the Posse Comitatus Act, it may also be that that construction may be deemed “military construction” part of a “military facility” and thus “expressly authorized by …Act of Congress” under the National Emergency Powers Act. 

The International Emergency Economic Powers Act 

          There is also the possibility that a President can resort to this Act found in 50 USC section 1701.  This act provides for economic sanctions against foreign nationals and nations.  However, the act states clearly: 

1701. Unusual and extraordinary threat; declaration of national emergency; exercise of Presidential authorities (a) Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat. (b) The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose. Any exercise of such authorities to deal with any new threat shall be based on a new declaration of national emergency which must be with respect to such threat. [emphases added] 

Overarching Issues 

          In any given instance:

The first is whether the Congress will exercise its oversight responsibilities under the Constitution and the Act and have the political will to issue a joint resolution to end the “national emergency.”  

                    The second is whether the courts will assume jurisdiction of the matter or will defer and call it a “political” question and not something the courts wish to get involved in.  This determination is, in itself, a political question. 

          Both of the above require that our country have an independent legislative branch and an independent judicial branch of government to oversee the motivations of the executive branch.  

Copyright © 2019 Ivan Hoffman.  All Rights Reserved. 

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Ivan Hoffman has been practicing intellectual property law for over 46 years and has written extensively about that topic. ( 


This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States laws but the laws of other countries may be different.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.




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