The legal case for Trump's declaration of an emergency to build border barriers
Democratic congressional leaders claim President Trump’s decision to declare a national emergency to spend additional money on a border wall is unlawful, with some even saying this maneuver looks more like a dictatorship than a democracy. On this matter, the Democrats are wrong. It was Congress that gave the president this power.The Democrats' hysteria in response to Trump's move probably stems more from a conflict over political objectives than it does from any real concern about the constitutional reality. At any rate, the courts will have that decision and they can find reasons to uphold Trump's move if they are so inclined.
The Military Construction Codification Act of 1982 provides that the president can reallocate funds for military construction projects when he declares a national emergency “that requires use of the armed forces.”
One could argue a border wall isn’t a real emergency and that judges should stop the president. The problem is that judges historically have tried to not second-guess the president’s national security judgment for declaring a national emergency. Congress holds the real power here. If lawmakers believe a border wall is a “fake” emergency, they can vote to undo the decision. The National Emergencies Act of 1976 says that Congress can pass a joint resolution of termination to end such an emergency declaration.
Discretion given to the president over how the executive branch is run, or how appropriated money is spent, is merely allowing the head of the executive to exercise his default control over his subordinates. The very first appropriations bill put almost no limits on how the money would be spent outside of the department it was assigned to, and likewise this authorization by Congress is constitutional.
Another concern the president should be aware of concerns the use of eminent domain, the power of the government to seize property for a public use. Only Congress can authorize the president to seize property, and it certainly has not done so in this case. Two-thirds of the land along the border is owned by private individuals who may not want a border wall on their property. The president does not have the power, under the authority he has invoked so far, to take their land. He can, however, negotiate to buy their land with the newly available funds.