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Public Law 85-804 / 50 USC Chapter 29, §§ 1431 - 1435.

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  1. Another Way to Build the Wall — Public Law 85-804 / 50 USC Chapter 29, §§ 1431 - 1435.
  3. It appears that there's yet another way the President can get the money to build the Wall.
  5. And it doesn't require the President to declare a state of emergency or issue a proclamation, either.
  7. So, they can either try to impeach him and remove him from office, attempt to repeal the law with a veto-proof majority (both of which are highly unlikely), or get out of the way.
  9. We've stumbled across an existing law seemingly related to the National Emergencies Act (NEA).
  11. It has far fewer restrictions than the NEA.
  13. It grants the President the authority needed to enter into contracts with companies to build the Wall (and to do a lot of other things) without the requirement to declare and define a state of emergency.
  15. Unlike the NEA, he doesn't have to cite specific laws he intends to use to re-program appropriated but unobligated funds.
  17. In fact, this law gives him the ability to commit the US Federal government to spend whatever he deems necessary, without reference to funds already authorized and appropriated by the Congress.
  19. And he can even commit the Federal government to guaranteeing bridge loans for the contractors he selects to build the Wall to tide them over until the Congress gets around to paying them.
  21. All he has to do is give the chairs of the House and Senate Armed Services Committees 60 days' written notice of his intentions.  That's it.
  23. This law is Public Law 85-804, also referred to as 50 USC Chapter 29, §§ 1431 - 1435, National Defense Contracts, in the US Code, Annotated.
  25. https://www.govinfo.gov/content/pkg/STATUTE-72/pdf/STATUTE-72-Pg972.pdf
  27. https://www.law.cornell.edu/uscode/text/50/chapter-29
  29. Here is the most salient text of the law from Section 1431:
  31. https://www.law.cornell.edu/uscode/text/50/1431
  33. The President may authorize any department or agency of the Government which exercises functions in connection with the national defense, acting in accordance with regulations prescribed by the President for the protection of the Government, to enter into contracts or into amendments or modifications of contracts heretofore or hereafter made and to make advance payments thereon, without regard to other provisions of law relating to the making, performance, amendment, or modification of contracts, whenever he deems that such action would facilitate the national defense.
  35. The authority conferred by this section shall not be utilized to obligate the United States in an amount in excess of $50,000 without approval by an official at or above the level of an Assistant Secretary or his Deputy, or an assistant head or his deputy, of such department or agency, or by a Contract Adjustment Board established therein. The authority conferred by this section may not be utilized to obligate the United States in any amount in excess of $25,000,000 unless the Committees on Armed Services of the Senate and the House of Representatives have been notified in writing of such proposed obligation and 60 days of continuous session of Congress have expired following the date on which such notice was transmitted to such Committees.
  37. For purposes of this section, the continuity of a session of Congress is broken only by an adjournment of the Congress sine die at the end of a Congress, and the days on which either House is not in session because of an adjournment of more than 3 days to a day certain, or because of an adjournment sine die other than at the end of a Congress, are excluded in the computation of such 60-day period.
  39. (Pub. L. 85–804, § 1, Aug. 28, 1958, 72 Stat. 972; Pub. L. 93–155, title VIII, § 807(a), Nov. 16, 1973, 87 Stat. 615; Pub. L. 101–510, div. A, title XIII, § 1313, Nov. 5, 1990, 104 Stat. 1670; Pub. L. 102–25, title VII, § 705(f), Apr. 6, 1991, 105 Stat. 120.)
  41. Amendments
  43. 1991—Pub. L. 102–25, § 705(f)(1), inserted before period at end of third sentence “and 60 days of continuous session of Congress have expired following the date on which such notice was transmitted to such Committees”.
  45. Pub. L. 102–25, § 705(f)(2), in fourth sentence, inserted “at the end of a Congress” after “sine die” and “, or because of an adjournment sine die other than at the end of a Congress,” after “to a day certain”.
  47. 1990—Pub. L. 101–510 struck out before period at end of third sentence “and 60 days of continuous session of Congress have expired following the date on which such notice was transmitted to such Committees and neither House of Congress has adopted, within such 60-day period, a resolution disapproving such obligation”.
  49. 1973—Pub. L. 93–155 provided for notification of Congressional Committees with respect to certain proposed obligations, Congressional resolution of disapproval, continuity of Congressional session, and computation of period.
  51. Effective Date of 1991 Amendment
  53. Pub. L. 102–25, title VII, § 705(f)(1), Apr. 6, 1991, 105 Stat. 120, provided that the amendment made by that section is effective as of Nov. 6, 1990.
  55. Nonapplicability of National Emergencies Act
  57. The provisions of the National Emergencies Act [see Short Title note set out under section 1601 of this title] shall not apply to the powers and authorities conferred by this section and actions taken hereunder, see section 1651(a)(4) of this title.
  60. This is an amazing piece of legislation — basically, it completely delegates the power of the purse from Congress across to the Executive Branch in the person of the President, with no dollar amounts or restrictions, for anything the President deems will 'facilitate the national defense'.  
  62. No strings attached.
  64. There is no reference to existing appropriations; these are new obligations the President can incur as he deems necessary to facilitate the national defense.  
  66. There is no limit specified on how much the President can spend this way.
  68. For amounts over $25M, the President must simply notify the chairs of the House and Senate Armed Services Committees in writing that he will be spending the money 60 days in advance, while Congress is in session.
  70. Apparently, the law was amended in 1973 to add a provision for the Congress to pass a resolution of disapproval within the 60-day notice period.
  72. But they removed it in 1990 in the run-up to the First Gulf War.
  74. It appears that any contracts entered into or obligations incurred via this legislation are not subject to the strictures in the Anti-Deficiency Act, which ordinarily prevents the government from entering into contracts which are not fully funded via the normal appropriations process (or arbitrarily re-program existing appropriations, though that doesn't apply in this context).
  76. And Congress can't do anything to stop the President from exercising this authority, short of impeaching & removing him from office or repealing this law with a veto-proof majority.
  78. This law was passed in 1958, during the Eisenhower Administration.
  80. It appears to be related to the Cold War rush to get ICBMs, bombers, and any other goods or services which the President deems would 'facilitate the national defense' purchased, constructed, and otherwise in place ASAP to confront the Soviets.
  82. It was cited on August 28th of 1958 by President Eisenhower in Executive Order 10789, in which he delegated a subset of this authority, with stricter limitations, to the service secretaries of the Army, Navy, and Air Force.  
  84. Further revisions to that Executive Order have delegated some of this authority to other departments.
  86. When Congress passed the National Emergencies Act in 1976, one of its main goals was to terminate various existing and obsolete national emergencies left over from previous Administrations.
  88. The idea was to clean up the enabling legislation from those emergencies, and consolidate the process for declaring an emergency and exercising emergency powers under a single piece of legislation.
  90. But when Congress passed the National Emergencies Act (NEA) in September of 1976, they specifically excluded this law, 50 USC Chapter 29, §§ 1431 - 1435, from the scope of the NEA.
  92. The Congress specifically wanted the President to retain this power, that he could exercise at will, to make contracts and commit the Federal government to anything the President determined would 'facilitate the national defense' — without the requirement to declare a national emergency, and without the Congress having the ability to intervene.
  94. There have been a few small amendments to the legislation, mainly adding the 60-day notice requirement and tightening up punctuation and the like, since then.  
  96. The last change to this law was made in April of 1991.
  98. After President Eisenhower cited this law in 1958 for his Executive Order, as far as we can tell, it wasn't actively cited again for 56 years (although Eisenhower's E.O. has been modified many times over the years and is active to this very day, still enabled by this law).
  100. In 2014, President Obama apparently issued a Presidential Memorandum stating that the United Agency for International Development, or USAID, could use the authority inherent in this law to — get this — indemnify USAID contractors in Africa from claims, losses, or damages arising from exposure to Ebola in Africa.
  102. Obama stated that “USAID is exercising functions in connection with the national defense in the course of complying with its humanitarian mandate, and there is a relevant state of national emergency that authorizes the use of Public Law 85-804.”
  104. He actually claimed that indemnifying USAID contractors in Africa from any damages arising from contracting Ebola was somehow 'in connection with the national defense'!
  106. So, building the Wall using this same piece of legislation should be a piece of cake.
  108. When we initially found this law, we were skeptical that it really handed so much contracting and spending power normally reserved and jealously guarded by the Congress over to the President.
  110. We've looked at it from all possible angles.
  112. We researched the history of the law, and how it had been used by Presidents Eisenhower and Obama.
  114. And after examining it thoroughly, we ultimately came to the conclusion that this law is still active, still on the books, is exempt from all the rules and provisions of the National Emergencies Act, appears to supersede the Anti-Deficiency Act, and does in fact empower President Trump to fund and build the Wall, subject only to the simple requirement to give the Congress 60 days' notice.
  116. But we still weren't satisfied, so we reached out to a friend and colleague who has professional expertise in these matters, to fact-check us on this discovery.
  118. After doing some additional research, he determined that our conclusions were sound.
  120. This law does exactly what we think it does — it allows the President fund, contract for, and build the Wall on our southern border, and simply inform the chairs of the House & Senate Armed Services Committees that he's doing so.
  122. He also discovered that the language in this legislation was deliberately copied word-for-word from the War Powers Act of 1941.
  124. That legislation was passed by the Congress and signed by President Franklin Roosevelt on December 17th, 1941.
  126. The only change that was made was to remove 'to facilitate prosecution of the War' and substitute 'to facilitate the national defense'.
  128. So, it turns out that President Trump doesn't have to declare a national emergency, nor does he have to issue a proclamation under the Insurrection Act or even plead with the Democrats in Congress to do the right thing and fund the Wall.
  130. All he has to do is estimate how much he wants to spend on the Wall — which has already been done — and tell the chairs of the House & Senate Armed Services Committees about it 60 days in advance.
  132. This is existing legislation which has been in place for more than 50 years; the powers delegated to the President in this legislation were specifically preserved intact by the Congress when they passed the National Emergencies Act in 1976.
  134. The powers this law delegates to the President were deliberately and explicitly copied from the War Powers Act of 1941.
  136. This power of the purse that Congress has delegated to the President in this law is very clear and  indisputable.
  138. As spelled out in the black-letter law, it is totally up to President Trump to determine what will 'facilitate the national defense'.
  140. Although they will try, this judgement of the President as to what will 'facilitate the national defense' is ultimately not justiciable in the courts due to the clarity and explicit language of the statute.  It is a political question in re Marbury vs. Madison.
  142. And they can't claim that he still has to declare a national emergency and reprogram existing Department of Defense funds, either, because this law is unambiguously exempt from the provisions National Emergencies Act and the Anti-Deficiency Act because the Congress wanted it that way.
  144. Even if it were justiciable, Congress cannot successfully argue in Federal court that President Obama could use this law to indemnify USAID contractors in Africa, but that President Trump can't use it to defend our borders.
  146. The President can also make use of 10 U.S. Code § 2663 — Land acquisition authorities, the military version of eminent domain that he's cited previously, to force the sale of any of the remaining ~700 miles of passable land along the southern border which is still in private hands, and he can use this existing law we've discovered to pay for it.
  148. https://www.law.cornell.edu/uscode/text/10/2663
  150. In 1907, President Theodore Roosevelt reserved from entry and set apart as a public reservation all public lands within 60-feet of the international boundary between the United States and Mexico within the State of California and the Territories of Arizona and New Mexico.
  152. This is called the Roosevelt Reservation, and potentially makes it easier for the Federal government to take any required privately-held border land in California, Arizona, and New Mexico (not Texas, where most of the privately-held land on the southern border is located).
  154. http://www.theodore-roosevelt.com/images/research/trproclamations/758.pdf
  156. President Taft did the same thing along the US/Canadian border in 1912.
  158. And while the Posse Comitatus Act does not in fact prevent the US military from securing our border, making use of this defense-related legislation to build the Wall doesn't actually involve the military at all — the President would be hiring civilian contractors to do all the heavy lifting.
  160. So, no bogus Posse Comitatus Act lawsuits or objections.
  162. And so we urge the President to make use of Public Law 85-804, 50 USC Chapter 29, §§ 1431 - 1435, to start building the Wall now.
  164. It's possible that the Administration are aware of this law and its implications, but we think they may not be — none of the reporting on the shutdown and building the Wall has noted anything like what we've just discussed in the existing law.
  166. So, we need to ensure we get the message out to the Administration and the base — President Trump can start on the Wall immediately.
  168. This is huge — the significance of this law and the power it gives the President to fund and build the Wall cannot be overstated.
  170. It is potentially the silver bullet the President and his base have been looking for to finally get the Wall built.
  172. We need to inform the President that he can use Public Law 85-804/50 USC Chapter 29, §§ 1431 - 1435 to fund and build the Wall right now without Congress, and without declaring a national emergency.
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