If Donald Trump attempts to use money to build his border Wall in defiance of Congress, even if he declares a national emergency, could this be an impeachable offence under the US Constitution? Harvard Law School professor Noah Feldman maintains that it would be.

See::Bloomberg (January 8)

No "Emergency" Will Allow Trump to Build His Wall

Professor Feldman's argument is based on the following proposition:

"President Donald Trump has said that he can declare a national emergency and order his border wall to be built. He's wrong. The U.S, Constitution doesn't contain any national emergency provision that would allow the president to spend money not allocated by Congress. And it's clear that Congress no only hasn't authorized money for a wall along the border with Mexico but doesn't intend to."

It is true, as Feldman also points out, that Congress has granted the president many "varied and broad" emergency powers - some 470 of them, by the latest count. But Feldman argues:

"But none of them can displace the Constitution itself. And it is the Constitution that says the Congress appropriates money and the president spends it...

It's one thing for the president to allocate discretionary funds creatively where Congress hasn't told him not to do it. It's quite another fro the president directly to defy Congress's will by spending money on a project Congress has repeatedly refused to authorize."

As an example, Feldman gives the Supreme Court case of Youngstown Sheet and Tube v. Sawyer in which Justice Jackson famously wrote the following for the Court's majority:in ruling that President Harry Truman lacked the authority to seize the nation's steel mills as a wartime emergency measure.

"...when the president takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb."

Feldman comments:

"Congress has been even clearer about not appropriating money for Trump to fund the wall than it was in not allowing Truman's seizure of the steel plants."

Invoking emergency powers therefore isn't a plausible way to fund the wall that Congress has refused And using discretionary funds even without any claim of emergency power is foreclosed by Congress' clear intent not to fund the wall.

He concludes:

"The upshot is that any attempt by Trump to get around Congress by using invented emergency powers would violate the Constitution...And it would constitute a high crime and misdemeanor qualifying him for impeachment."

Professor Feldman's full article is available at


Moreover, as has also been pointed out by myself and others in previous comments, Trump's Wall obsession is not just an isolated proposal, but is part of a larger agenda of changing the immigration laws to favor white immigrants from Europe over non-white immigrants from Asia, Africa, the Middle East and Latin America.

Indeed, even if Congressional leaders were to offer Trump an accommodation on Wall funding in order to end the long, cruel and destructive government shutdown which Trump himself initially claimed that he would be "proud" to take responsibility for, there is every reason to believe that Trump would take this as a sign of opposition weakness and demand changes in the immigration laws as well, as his price for reopening the government.

As I have previously mentioned, Trump has often linked the issue of building the Wall with demands to change the immigration laws to roll back or abolish legal immigration vehicles, such as extended family immigration and the Diversity Visa lottery, which are perceived by white nationalists as being "too friendly" to applicants from Asia, Africa and Latin America as opposed to Europe.

As I and others have also written, the Trump administration is also now well under way in issuing a host of regulations and policy memos, from TPS cancellation, refugee reductions and draconian "Public Charge" rules to eliminating RFE's, requiring pointless employment based AOS interviews purely for purposes of delay, and many other administrative actions which are obviously designed to impact immigration mainly from non-white parts of the world.

The same is true of the so-called "Merit-based" RAISE Act, which went nowhere in Congress but which Trump loudly and vigorously supports.

Could there not be an argument that imposing this agenda against non-white immigrants by executive fiat directly conflicts with the clear intent of Congress to abolish racial and national origin discrimination in legal immigration as embodied in the landmark immigration reform act of 1965, which is still very much the law of the land?

Is this not also defying the clearly expressed will of Congress?

In in view of the fact that a number of lower federal courts have found that key parts of Trump's agenda, such as the Muslim Ban and ending TPS for hundreds of thousands of non-European immigrants, are motivated by racial "animus" which violates the Constitutional equal protection rights of US citizens, not just immigrants who admittedly may have fewer Constitutional protections, is there not an argument that Trump's entire anti-immigrant agenda goes against the Fifth and Fourteenth Amendments to the Constitution itself, not only against the clearly expressed will of Congress?

Could this racially motivated agenda not also be grounds for impeachment?

I will explore these questions in more detail in upcoming comments.

Roger Algase

Attorney at Law