Fox News legal expert: Forcing border wall through state of emergency would be unconstitutional

With the partial shutdown of the federal government dragging on and House Speaker Nancy Pelosi continuing to oppose a U.S./Mexico border wall, President Donald Trump has asserted that he might force the construction of a wall by declaring a state of emergency. But according to Fox News’ Judge Andrew Napolitano, such a declaration would be unconstitutional.

Appearing on the morning show “Fox and Friends” on January 8, the libertarian told host Steve Doocy and others that Trump “can declare a state of emergency, but the declaration itself does not give him the power to take private property.”

Napolitano went on to say that in parts of Texas, the wall would need to be built

on what is now private property—and the federal government “would have to condemn it and pay for it. (Trump) can’t do that without congressional authorization. He can’t spend money without congressional authorization.”

Napolitano added, “The emergency declaration allows him to mobilize assets, but it doesn’t allow him to take or occupy property—and it doesn’t allow him to spend money that Congress hasn’t authorized.”

At Fox News, Trump supporter Sean Hannity has asserted that forcing the construction of a border wall via an emergency declaration is a good idea. But Napolitano has not been shy about parting company with his colleagues at Fox News when he believes they are wrong. And on “Fox and Friends,” the judge stressed that a border wall would have to be funded by Congress whether Trump likes it or not.

“If the president, frustrated by Congress, could declare a national emergency and go around Congress, we would have seen this before,” Napolitano explained. “Barack Obama would have declared a national emergency in health care and started spending money on insurance policies to keep people healthy. And obviously, he didn’t because he couldn’t.”

Trump made his case for a border wall during a speech Tuesday. Napolitano noted that while Trump speech could urge the construction of a wall, “he can’t change the law, and he can’t avoid the Constitution.”

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