President Trump has threatened to declare a national emergency to break the impasse over the funding and construction of his beloved border wall. This might be a good negotiating tactic, as Democrats could strike a bargain out of fear that the new conservative Supreme Court majority could ratify his decision. Actually doing it, however, would be a bad idea, both legally and politically.
The Korean War-era case of Youngstown Sheet & Tube Co. v. Sawyer seems to stand directly in Trump’s way. That case involved an executive order by President Harry S. Truman to seize and operate the nation’s steel mills in the face of a nationwide strike to ensure that steel could continue to be made during the Korean War. Six members of the Supreme Court held that the president’s action was unconstitutional, supported by neither legislative authorization nor implied Article II constitutional powers.
If Trump tried something similar, Democrats and immigration advocacy groups would immediately file a lawsuit, using this case as authority. Rep. Adam B. Schiff (D-Calif.) has already implied doing so, noting, “If Harry Truman couldn’t nationalize the steel industry during wartime, this president doesn’t have the power to declare an emergency and build a multibillion-dollar wall on the border.”