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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. President Trump is

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Speaker 1: talking about taking the partial shutdown of the government over

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Speaker 1: a border wall to the next level, threatening to declare

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Speaker 1: a national emergency to build the wall without Congress's approval.

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Speaker 1: He first flirted the idea at a press conference on Friday.

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Speaker 1: We can call a national emergency because of the security

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Speaker 1: of our country. Absolutely, now we can do it. I

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Speaker 1: haven't done it. I may do it. I may do it.

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Speaker 1: But we could call a national emergency and build it

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Speaker 1: very quickly. And uh, it's another way of doing it.

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Speaker 1: The question is not only will he do so, but

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Speaker 1: can he do so? Here to answer that is Harold Crant,

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Speaker 1: dean of the Chicago Kent College of Law and author

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Speaker 1: of the book Residential Powers. So, Harold, does President Trump

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Speaker 1: have the power to declare a state of emergency at

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Speaker 1: the border and build a wall? The answer is in

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Speaker 1: two parts. The probably he has the authority to declare

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Speaker 1: an emergency. The question is who can question him about

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Speaker 1: that declaration? Um is that the courts, will it be Congress?

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Speaker 1: Unclear because obviously many people don't believe that we are

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Speaker 1: facing an emergency. But under the National Emergencies Act that

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Speaker 1: was enacted in ninety six, he has the authority to

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Speaker 1: declare an emergency as long as he does so following

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Speaker 1: the protocols set out in that statute. But the second

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Speaker 1: part is this is gonna take money, and how will

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Speaker 1: he be able to raise money for the five point

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Speaker 1: seven billion or whatever it is? Um, Their Congress will

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Speaker 1: have a say as well the courts, and his plan

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Speaker 1: maybe get a little more difficult. So this is definitely

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Speaker 1: going to the courts. Then, well, first of all, this

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Speaker 1: may be a barbering employee, and many people think it's

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Speaker 1: a barbering employee, but people just don't know, I mean,

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Speaker 1: will he Is he trying to get the Democrats to

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Speaker 1: some kind of compromise over the shutdown of the government

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Speaker 1: or is this an alternative and maybe he set this

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Speaker 1: out as a twild balloon to see if people will

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Speaker 1: accept it. We've had about thirty emergencies declared under the

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Speaker 1: nineteen seventy six Acts, starting with the Iran hostage situation

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Speaker 1: of course nine eleven, as well as others. And there

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Speaker 1: are very few constraints in this legislation that define what

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Speaker 1: is a permissible emergency. Um. Obviously, people can say that

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Speaker 1: we haven't seen that many more arrests or unrest at

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Speaker 1: the border. Most people are coming to the border to

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Speaker 1: seek asylum. They're not having any kind of threat um.

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Speaker 1: But that would be up in the judgment of the president,

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Speaker 1: and we don't know if judges will review that determination.

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Speaker 1: The remedy I think it's another big question. I mean

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Speaker 1: the remedy of how does a wall help the crisis

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Speaker 1: with respect to asylum seekers. That's a little unclear. And

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Speaker 1: can the wall be built within two years anyway, And

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Speaker 1: usually if we don't see emergencies for something that's going

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Speaker 1: to happen two years from now. So if the courts

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Speaker 1: would take this to consider whether or not this is

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Speaker 1: an appropriate use of the national emergency power, there's a

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Speaker 1: lot to look at um if they review it on

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Speaker 1: the merits. President Truman tried to nationalize the steel mills

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Speaker 1: during wartime. He was blocked by the Supreme Court. The

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Speaker 1: Roberts Court has seemingly straight a little bit from that

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Speaker 1: case in the decision on the Muslim band, which bolsters

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Speaker 1: the president's control over the nation's borders, is this court

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Speaker 1: more likely to stand by Trump on this? It's such

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Speaker 1: a hard call. I mean, the Youngstown Steel case that

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Speaker 1: you mentioned is, you know, the best known sort of

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Speaker 1: president Um. It wasn't under the same statutory structure, but

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Speaker 1: the president declared a national emergency during the Korean war

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Speaker 1: effort and wanted to nationalize the steel to make sure

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Speaker 1: we would have a steady supply of steel to help

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Speaker 1: fuel the war effort. UM. And that, however, went pretty

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Speaker 1: much against the Teff Hartley Act, which sort of structured

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Speaker 1: when the president could use the power to UM take

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Speaker 1: away the ability of employees to bargain for their salaries

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Speaker 1: and so forth. UM and the Court then felt that

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Speaker 1: that because Congress had acted that the president had exceeded

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Speaker 1: his constitutional powers. Would this be the same thing. I

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Speaker 1: think what people need to recognize is when even if

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Speaker 1: the president exercised this power to create a national emergency,

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Speaker 1: he then needs to have money to fund the wall.

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Speaker 1: And to get the money to fund the wall, most

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Speaker 1: people think the only way he could do it was

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Speaker 1: to take money that was already appropriated by Congress to

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Speaker 1: the to the Defense Department and reallocate it to his

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Speaker 1: law project. That's going to step on people's toes. It's

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Speaker 1: going to step on Republican members of Congress who like

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Speaker 1: the projects that given to the Department of Defense, and

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Speaker 1: that will, I think, be the kind of context in

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Speaker 1: which a more successful challenge will take place. If Congress says, no,

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Speaker 1: we want the money that we previously given to the

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Speaker 1: Department of Defense for X or Y project, we want

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Speaker 1: that to go forward, then it would be seen that

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Speaker 1: the President would be acting in the teeth of a

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Speaker 1: congressional direction. So I think that at that point it's

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Speaker 1: more likely that the court would step in. I don't

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Speaker 1: think a court would step in at this initial phase

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Speaker 1: just when the president announces an emergency, because there have

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Speaker 1: been so many emergencies in different contexts before Harold. Who

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Speaker 1: would have the standing to bring this kind of an action,

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Speaker 1: in other words, who would be injured and be able

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Speaker 1: to state the case in a federal court. My best

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Speaker 1: guess at this time is that if money was shifted

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Speaker 1: from project X or Y, the individuals who would benefit

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Speaker 1: from that project. There's defense industries, employees to be paid

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Speaker 1: on those projects would then have standing to say, but

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Speaker 1: for this emergency, we would have the money to continue

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Speaker 1: this Department of Defense project, and now we don't, And

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Speaker 1: therefore we can go to court to say that it

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Speaker 1: was an illegitimate act of the president, um, in the

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Speaker 1: face that what I'm predicting will be a congressional response, um.

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Speaker 1: And therefore that the court should enjoying the president from

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Speaker 1: pursuing funding for the project. But I do think, uh

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Speaker 1: my gut tells me that at the first level, no

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Speaker 1: one will be successful at challenging the declaration of an

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Speaker 1: emergency by itself, um, but rather have to wait until

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Speaker 1: it reduces to a question of money. So you've written

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Speaker 1: on presidential powers. Has President Trump repeatedly by using his

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Speaker 1: executive powers, by issuing executive orders and now threatening to

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Speaker 1: declare a state of emergency, has he tried to expand

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Speaker 1: presidential powers? Well, he certainly believes in an expanded president,

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Speaker 1: but many presidents have, right. I mean, President Obama used

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Speaker 1: the executive order quite aggressively as well, and I think

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Speaker 1: that what he's done, I mean what he's done, and

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Speaker 1: it's certainly the most adventurous that you had adverted to

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Speaker 1: earlier was the whole question about the Muslim band. You

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Speaker 1: know there. I think he was fast and loose with

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Speaker 1: authority by imposing that kind of band with such incredible

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Speaker 1: consequences with very little um either precedent or congressional support. Uh.

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Speaker 1: But I don't think he's used new tools to any

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Speaker 1: kind of extent. That's Harold Grandin of the Chicago Kent

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Speaker 1: College of Law. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. I'm June Brosso.

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Speaker 1: This is Bloomberg. The d end't end up in the

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Speaker 1: n