https://www.nationalreview.com/2019/01/trump-border-wall-construction-pentagon/
He should ditch the “military version of eminent domain” and order the Pentagon to start building.
Donald Trump spent much of his 2016 campaign railing against President Obama’s misuse of executive power, especially Obama’s decision to extend legal protection to underage children who were brought to the U.S. by their foreign parents.
But now President Trump, frustrated by Congress’s failure to deliver $5 billion in funding for the border wall, is proposing to bend the Constitution to get what he wants. Trump told reporters that he may be willing to declare a state of national emergency to build the wall “very quickly” without congressional backing, and that he may even use “the military version of eminent domain” to seize the property such a structure might need. “I can do it if I want,” he declared.
Trump can certainly declare a national emergency, but the courts would probably look askance on any rash actions. In 1952, President Harry Truman cited a state of emergency when he ordered the government to seize the steel mills during a strike. He claimed it was the only way to guarantee that the mills would continue to produce weapons for the Korean War. The Supreme Court — packed with justices appointed by New Deal presidents — nonetheless concluded by a 6 to 3 vote that he didn’t have the authority to nationalize private businesses. Few legal scholars believe that the current Supreme Court — the conservative portion of which is steeped in Federalist Society principles of limited government — would give Trump the benefit of the doubt in a non-war situation.
But many legal scholars say there is a way Trump could act legally. Current law allows the Defense Department to use “un-obligated” money to fund construction projects during war or emergencies. “The Department of Defense has funds in its account that are not specifically designated for anything,” Harvard Law School professor Mark Tushnet told NBC News. “My instinct is to say that if he declares a national emergency and uses this pot of unappropriated money for the wall, he’s on very solid legal ground.”