We Are Going to Build a Wall and Institutional Legitimacy Will Pay For It

Abstract

This paper will analyze President Trump’s use of the NEA and one of its accompanying statutes, the Military Construction Codification Act, to secure funding to build a border wall. More broadly, this paper aims to trace the complexities within the broader system of the NEA and its associated statutes (“the NEA+ Framework”) and to critique its redistribution of power between the political branches. Part I traces the history of the president’s national emergency powers from the early days of the Republic, through the events that led to the NEA+ Framework, to the current doctrine. Part II introduces the actual authority that President Trump has invoked to secure funding, one of the statutory grants of power accessible via the NEA. Part III examines the various challenges that await the Trump Administration working within the NEA+ Framework, including issues of justiciability, statutory construction, and constitutionality. Part IV looks not at legality of the specific actions within the NEA+ Framework, but at the statutory system itself as an unconstitutional delegation of legislative authority that perverts the separation of power principles fundamental to the United States Constitution.