Even before the last two months of disappointing negotiations, Congress was hardly silent on our lawless border. The legislative branch has spoken on the problem many times and on each of these occasions, it has granted the President substantial powers to fix it.
The 2006
Secure Fence Act, for example, commands the executive branch to “take all actions...necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States…,” specifically including physical barriers.
The Immigration and Nationality Act
grants the President the authority to “suspend the entry of all aliens or any class of aliens as immigrants or non immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
In this case, the emergency powers Congress has already delegated to the President are perfectly tailored to allow him to solve the border crisis. A declaration of national emergency authorizes the President, “without regard to any other provision of law,” to tap into funds already
appropriated for military construction
and the U.S. Army Corps of Engineers’
civil works program.
Until Congress passes a new law or resolution — which would require a
two-thirds majority in both houses if President Trump were to issue a veto — the legislative branch has already given the President ample authority to declare a state of emergency on the southern border.
So long as Congress remains unwilling to legislate a specific plan to bring our porous border under control, the President has the responsibility to use that previously-delegated authority to protect the American people.
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DiGenova is an American attorney who served as the United States Attorney for the District of Columbia from 1983 to 1988.
