1. First, I’m not a supporter of the president, but I’m going to try to be as objective as possible, using my experience of almost 36 years as a government attorney.
2. On the “national emergency.” Congress may well pass a resolution of disapproval, but whether they can override a veto is questionable. The National Emergencies Act doesn’t define “national emergency”. That means some definition will now come from the courts; that’s how statutes often get defined. The open question is whether the courts will look behind the words in the proclamation to consider objective facts, as well as the president’s own statements which seem to contradict the emergency.
3. Even if the emergency is upheld, the president has no inherent authority to act and may only act under the authority of a statute. Does the statute he cited (10 U.S.C. 2808) support what he’s trying to do? Section 2808 allows the Secretary of Defense, during an emergency that requires use of the military to undertake military construction projects “that are necessary to support such use.” In other words, the projects that use these funds must be shown to be in support of the military. For example, the Bush 43 Administration used this law for projects supporting troops sent to Afghanistan after 9/11.
4. If these issues are surmounted, then comes how to actually build the wall. It must be done by contract. First, news reports say that the president has already been interviewing contractors. I hope this is untrue, as it will cause problems with the contracting laws and regulations. While the Federal Acquisition Regulation does allow exchanges with industry before proposals are received, they must be done in a way that doesn’t give an unfair advantage to any one.
5. Next, the law requires the government to contract using full and upon competition. This requires publishing the planned solicitation on a government website, publishing the solicitation after waiting at least 15 days, and giving at least 30 days for proposals to be received. The requirement for competition can only be avoided when a legal exception applies. The most likely one is “When the agency’s need for the supplies or services is of such an unusual and compelling urgency that the Government would be seriously injured unless the agency is permitted to limit the number of sources.” The written justification for using this exception must be made public. Some problems with using this exception are that the government would have to show why the normal procedures aren’t timely enough as well as why some sources weren’t considered. The length of time needed to seize property under eminent domain might allow regular procedures to be used.
6. If the contracting procedures aren’t followed, who can say anything? Companies who feel that they should have had an opportunity to build the wall can protest to the Government Accountability Office or the Court of Federal Claims.
7. Finally, Congress could step in and include in the appropriations laws for fiscal year 2020, only a few months away, a provision which says something like “No funds appropriated under this or any other Act for any fiscal year shall be available for the construction of a wall [obviously using a better description] under the President’s proclamation of February 15, 2019.” That would force President Trump to give up on the wall or shut down the Government all over again. Of course, the Senate might be (but not certainly so) be unwilling to go along with including such a prohibition.
2. On the “national emergency.” Congress may well pass a resolution of disapproval, but whether they can override a veto is questionable. The National Emergencies Act doesn’t define “national emergency”. That means some definition will now come from the courts; that’s how statutes often get defined. The open question is whether the courts will look behind the words in the proclamation to consider objective facts, as well as the president’s own statements which seem to contradict the emergency.
3. Even if the emergency is upheld, the president has no inherent authority to act and may only act under the authority of a statute. Does the statute he cited (10 U.S.C. 2808) support what he’s trying to do? Section 2808 allows the Secretary of Defense, during an emergency that requires use of the military to undertake military construction projects “that are necessary to support such use.” In other words, the projects that use these funds must be shown to be in support of the military. For example, the Bush 43 Administration used this law for projects supporting troops sent to Afghanistan after 9/11.
4. If these issues are surmounted, then comes how to actually build the wall. It must be done by contract. First, news reports say that the president has already been interviewing contractors. I hope this is untrue, as it will cause problems with the contracting laws and regulations. While the Federal Acquisition Regulation does allow exchanges with industry before proposals are received, they must be done in a way that doesn’t give an unfair advantage to any one.
5. Next, the law requires the government to contract using full and upon competition. This requires publishing the planned solicitation on a government website, publishing the solicitation after waiting at least 15 days, and giving at least 30 days for proposals to be received. The requirement for competition can only be avoided when a legal exception applies. The most likely one is “When the agency’s need for the supplies or services is of such an unusual and compelling urgency that the Government would be seriously injured unless the agency is permitted to limit the number of sources.” The written justification for using this exception must be made public. Some problems with using this exception are that the government would have to show why the normal procedures aren’t timely enough as well as why some sources weren’t considered. The length of time needed to seize property under eminent domain might allow regular procedures to be used.
6. If the contracting procedures aren’t followed, who can say anything? Companies who feel that they should have had an opportunity to build the wall can protest to the Government Accountability Office or the Court of Federal Claims.
7. Finally, Congress could step in and include in the appropriations laws for fiscal year 2020, only a few months away, a provision which says something like “No funds appropriated under this or any other Act for any fiscal year shall be available for the construction of a wall [obviously using a better description] under the President’s proclamation of February 15, 2019.” That would force President Trump to give up on the wall or shut down the Government all over again. Of course, the Senate might be (but not certainly so) be unwilling to go along with including such a prohibition.
