It is unclear whether the president has the legal authority to order the Department of Defense to build a wall on the southern border, according to a report issued by The Congressional Research Service (CRS).
The issue has become paramount as President Donald Trump has been stymied in his desire to build the wall, with Congressional Democrats arguing the $5.7 billion project is unnecessary, The National Interest reported Monday.
Trump's threat to bypass Congress by declaring a national emergency – so he can order the wall built as an emergency military construction project – has raised legal questions, which the CRS report addresses.
The report states these issues include "the circumstances in which conditions along the border rise to the level of a 'national emergency' that 'requires use of the armed forces,' and the circumstances in which military construction is 'necessary to support such use of the armed forces'; the meaning of the term 'military construction' in the [Military Construction Codification Act]; and how a court would review different segments of border wall construction."
Although presidents have been given broad powers to declare national emergencies, The National Interest points out it is unclear if the situation on the Mexican border is a national emergency, and if, according to the law, a border wall can be considered a military construction project, especially since previous presidents have not used the powers for this purpose.
The CRS report concludes it will be up to a judge to decide the issue and raises the possibility the court could rule the wall is legal along some parts of the border, but not others.
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