President Trump's apparent decision to declare a national emergency to build a wall at the Mexican border could be challenged in Congress or in the courts. But the bipartisan vote that congressional opponents need seems like a long shot, and the Supreme Court, which may have the last word, has not been eager to place roadblocks in Trump's path.
The White House confirmed Thursday that Trump would use the declaration to circumvent Congress' refusal to provide money he wants for the long-sought wall. Such emergency powers have been used dozens of times by presidents of both parties, but rarely, if ever, in defiance of lawmakers' objections about the use of federal funds.
House Speaker Nancy Pelosi, D-San Francisco, said Trump was attempting "an end run around Congress." She said both parties should be equally concerned about expanding presidential powers, but did not seem optimistic about convincing Republicans who control the Senate.
"Republicans should have some dismay about the door they are opening," she said.
A 1976 federal law, the National Emergencies Act, recognized long-standing presidential authority to declare a national emergency, but said Congress could overrule the president with a joint resolution.
But even if such a resolution won majority votes in both houses of Congress, supporters of the move would need a two-thirds majority to override Trump's almost-certain veto. An override effort would likely be successful in the House, where Democrats are in control, but seems highly unlikely in the Senate, where Senate Majority Leader Mitch McConnell, R-Ky., said Thursday he would support the emergency declaration.
Opponents' remaining recourse would be a lawsuit, possibly by owners of property near the border, or by members of Congress contending Trump was usurping their constitutional authority over federal spending.
One such confrontation occurred in 1952, when President Harry Truman issued an executive order to seize the nation's steel mills because he feared a strike by mill workers during the Korean War.
The Supreme Court ruled 6-3 that Truman had exceeded his authority by commandeering private property without legal justification. In a concurring opinion, Justice Robert Jackson — a former U.S. prosecutor at the Nuremberg war-crimes trials — said the president's spending power, even after a declaration of emergency, was "at its lowest ebb" when it conflicted with "the expressed or implied will of Congress."
The current Supreme Court, however, gave Trump broad leeway on border security in June when it deferred to his argument that travelers from a group of predominantly Muslim countries posed a threat to U.S. security. Since then, Justice Anthony Kennedy, who sided with the majority on the travel ban but voted at times with more liberal justices, has retired and been replaced by Brett Kavanaugh, a Trump appointee with a history of endorsing executive authority.
While Trump has argued that border crossings by unauthorized immigrants and illegal drugs have created a "humanitarian crisis," one opposing legal analyst noted that the president had been saying much the same thing since December, when a congressional impasse over funding for the wall shut down many federal agencies for 35 days. That was followed by weeks of negotiations that produced a spending bill including about $1.4 billion for various barriers and border-security measures, but not the $5.7 billion Trump sought for a wall.
"Presidents don't dawdle in the face of real emergencies," Elizabeth Goitein of the Brennan Center for Justice at New York University Law School said in a recent article in the Atlantic magazine. "Even if a real crisis existed, emergency powers are designed for situations in which Congress has no time to act."
Another Brennan Center attorney, Andrew Boyle, acknowledged Thursday that the Supreme Court historically has been "very deferential to the executive in times of national emergency." But, he added, "we never have really had an emergency declaration that has been so clearly telegraphed as a way to get around Congress."
Sen. Dianne Feinstein, D-Calif., sounded a similar theme, disputing the existence of any border emergency and adding, "The Constitution says Congress decides how to spend money, not the president."
If the case gets to the Supreme Court, another issue would be the proposed source of the wall funding. Trump has spoken of redirecting money that Congress has appropriated for military construction. Federal law allows such funds to be shifted to other projects "in support of the armed forces."
"Is building a wall military work? There's lots of room for debate," Rory Little, a law professor at UC Hastings in San Francisco and a former Justice Department attorney, said in a recent interview.
But John Eastman, a constitutional law professor at Chapman University in Orange County, said the connection shouldn't be hard to establish, since soldiers are helping to patrol the border.
"If the military is being assigned for border security, obviously a wall is in aid of that use," he said.
Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com
Twitter: @BobEgelko
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