As President Trump looks set to declare a national emergency in an attempt to fund his proposed border wall, the question on everyone’s mind is: Can he get away with that? Two legal experts from Fox News and CNN have some opinions on the matter — and they’re the opposite of what you might expect from each network.
First up is Fox News’ Andrew Napolitano, who argued both on-air and in an op-ed that Trump’s attempt to get around Congress to fund the wall by diverting funds set aside for other purposes won’t fly.
“The Supreme Court has made it very clear, even in times of emergency, the president of the United States of America cannot spend money unless it has been authorized by the Congress,” Napolitano said. He compared the situation to President Harry Truman trying to seize steel mills without the authorization of Congress in 1952, which the Supreme Court ruled he lacked the authority to do. Napolitano suggested Trump won’t even go through with this and that it’s just a “bargaining technique,” adding, “This ‘declaring an emergency and spending money however I want’ is not going to happen.”
But over on CNN, legal analyst Jeffrey Toobin argued Trump diverting money toward the wall after declaring a national emergency is “probably” legal, or at least “unlikely to be stopped by the court,” per HuffPost. He had two main reasons, one being that the president’s emergency powers are fairly broad. But the other is that he doesn’t see the courts finding a plaintiff who’d have standing to sue over it “at any early point in the process.” Therefore, even though Toobin made clear both on air and in a New Yorker op-ed that Trump shouldn’t circumvent Congress in this way, he said that “at least in the short-term, I think that if President Trump wanted to do this, the courts would let him.” Brendan Morrow