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Analysis

Here’s the biggest thing standing between Donald Trump and his wall

The question isn't whether the wall is legal. The question is whether men like Clarence Thomas will remember their core values.

A photograph of novelist Ayn Rand, taken during a TV interview in the 1960's, hangs in the offices of the Ayn Rand Institute's national headquarters.  (Photo by Don Tormey/Los Angeles Times via Getty Images)
A photograph of novelist Ayn Rand, taken during a TV interview in the 1960's, hangs in the offices of the Ayn Rand Institute's national headquarters. (Photo by Don Tormey/Los Angeles Times via Getty Images)

If Donald Trump declares a national emergency to build his wall and orders the military to build it — as Trump is reportedly considering — he can lean on a broad set of federal laws authorizing military action.

Read together, these laws should not authorize Trump to build his wall. Among other things, an emergency declaration only authorizes “military construction projects” to address an emergency that “requires use of the armed forces.” And the only reason Trump thinks that building the wall requires use of the armed forces is that Trump can’t convince Congress to approve his wall.

But supporters of the rule of law must defend it in the courts we have, not in the courts we want. The Supreme Court we have upheld Trump’s Muslim Ban — and that was before Trump replaced sometimes swing Justice Anthony Kennedy with a man who is far more sympathetic to the president’s power to act when he invokes the phrase “national security.”

Even before Brett Kavanaugh became one of the nine most powerful judges in the country, moreover, the Supreme Court afforded great deference to presidents who plead national security. As the Court warned in Boumediene v. Bush“neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people.” Information on potential threats “can be difficult to obtain and the impact of certain conduct difficult to assess,” the Court explained two years later in Holder v. Humanitarian Law Project.

The question of whether Trump can order the military to build his wall should not be a close case. But Trump’s allies on the Supreme Court have all the tools they need to say that the president gets to determine which emergencies require the use of the armed forces.

No one imagined a rogue president

There is no federal law which explicitly authorizes the president to order the military to build a border wall. Yet there are a frightening broad array of laws permitting the military to infringe the rights of private citizens.

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In politically charged cases, legal arguments are often irrelevant. Judges, and especially Supreme Court justices, are as likely to decide these cases based on their core values as they are to decide them based on deep dives into legal texts. As the Washington Times explained in a 2014 analysis of lawsuits involving the Affordable Care Act, “Democratic appointees ruled in favor of Obamacare more than 90 percent of the time, while Republican appointees ruled against it nearly 80 percent of the time.”

So it’s worth taking a moment to consider exactly what Trump is contemplating. Donald Trump wants to order the military to take people’s land.

Over at the Volokh Conspiracy, libertarian law professor Ilya Somin argues that, if the courts permit Trump to do such a thing, “conservatives are likely to regret the precedent he sets.” If Donald Trump can, again, order the military to take people’s land, then why can’t President Elizabeth Warren decide that the concentration of banking power into too few hands threatens national security, and order major national banks to sell themselves to the federal government? Why can’t President Alexandria Ocasio-Cortez declare that inadequate health care threatens national security, and order the military to take land and build public hospitals?

The best chance of defeating Trump’s proposal is to get one or more conservatives on the Supreme Court — conservatives who loathe eminent domain with the same white-hot intensity that they hate Obamacare and Hillary Clinton — to understand that ordering the military to take people’s land is a direct attack on core conservative values.

The problem with this argument, however, is that federal law permits the military “to acquire by condemnation any interest in land” that is needed for “the site, construction, or operation of fortifications, coast defenses, or military training camps.” Maybe Justice Clarence Thomas or Neil Gorsuch will be so spooked by the possibility of Trump ordering the military to take people’s land that they will decide that a border wall doesn’t constitute a “fortification.” But a judge who wants to side with Trump in this case could easily say that Congress authorized the military to use eminent domain to build the wall.

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So lets assume that Trump can buy up all the land he needs to build his wall. What authorizes him to order the military to build the thing? The most on-point statute is worth quoting at length:

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.

Two passages of this law are worth highlighting. The first is that the law only applies to an emergency that “requires use of the armed forces.” It’s far from clear why such use is required to built the wall. Civilians are perfectly capable of building walls — they do it all the time! They only reason why Trump could claim that military builders are needed is because he can’t get Congress to approve his wall. But, again, if that’s enough, why can’t President Ocasio-Cortez say that she needs the military to build hospitals that Congress won’t approve?

The second passage worth highlighting is “necessary to support such use of the armed forces.” As the Center for American Progress’ Sam Berger* writes, “the construction of a wall is not to support the use of the armed forces, it’s the purpose of employing the military in the first place.” The purpose of the wall isn’t to support a broader military mission. The wall is the mission.

So there are very strong arguments that federal law does not permit the military to build this wall, at least without further congressional authorization. As a general rule, when a statute explicitly permits the government to do a particular thing, that explicit statement can be read to prohibit the government from doing other, related things.

There’s even a Latin maxim that lawyers use to express this concept. Expressio unius est exclusio alternius. To express one thing is to exclude another.

Inter arma enim silent leges

Nevertheless, Trump and his allies on the Supreme Court also have a Latin maxim on their side. Inter arma enim silent leges. In times of war, the law falls silent.

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Sure there’s no actual war justifying Trump’s wall. There isn’t even a genuine emergency. But the core question in national security cases often isn’t what the law requires, it is who gets to decide what the law requires.

Indeed, the Court is often so deferential to elected officials regarding questions of national security that it will permit open defiance of the Constitution. Thus the Court’s decision in Trump v. Hawaii to uphold Trump’s Muslim ban. As Justice Sonia Sotomayor wrote in dissent, that decision held that “the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and tolerance.”

Nor is such extraordinary deference to the other branches a new development. As far back as 1981, the Supreme Court held in Rostker v. Goldberg that the Selective Service System may engage in outright gender discrimination. Rostker, Justice William Rehnquist explained for the Court, arose “in the context of Congress’ authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference.”

So the most important question in a lawsuit challenging Trump’s wall is not likely to be whether building such a wall “requires use of the armed forces,” or whether building the wall is a support mission or a core mission. The most important question is whether the courts are allowed to decide whether the military is required to obey the law — or whether judges must defer to the president.

If the Muslim ban case is any indication, this Court is likely to side with Donald Trump.

The Fountainhead

There is an annual tradition in Justice Thomas’ household. Every summer he invites his four law clerks to his home to watch the 1949 film adaptation of Ayn Rand’s The Fountainhead. It is, at once, a tribute to Thomas’ self-image as a man who “stood alone against the men of his time,” and a celebration of Thomas’ libertarian economic values.

There’s little question what Ayn Rand would have thought about a president who orders the military to take land from private citizens. Indeed, the idea that an American president would give such an order seems so ridiculous on its face that it’s easy to imagine such an order providing the central conflict of an entire Ayn Rand novel.

The question, if a real life villain gives such an order, is what set of values the Supreme Court will bring to the table. Recent history suggests that the Court’s conservatives will look the other way. Inter arma enim silent leges.

But the Muslim ban case involved, well, Muslims. It involved foreigners. And it involved people that conservatives see as culturally alien. It involved the kind of people that men like Thomas don’t really give a damn about.

If Trump uses an emergency declaration to build his wall, however, he will be doing something else. He’ll be targeting property owners — the very class of people that Thomas was placed on the Supreme Court to protect. Trump will literally be sending the military to take people’s land.

The question is whether that will be a bridge too far for judges who pine for the Gilded Age.

* ThinkProgress is an editorially independent project of the Center for American Progress Action Fund.