By the time you read this you may know whether President Donald Trump has declared a national emergency in order to scoop up some of the $20 billion of excess funds out of the Pentagon budget in order to build his wall on the southern border. Indeed, the Army Corps of Engineers may be en route to erect the barrier. There are many issues, including the use of eminent domain, since a lot of the land is privately owned and the democrats may be challenging his power in court. His decision to use emergency powers, however, is not without precedent.

In a crisis a president can invoke extraordinary authority and power. This power allows the president to sidestep many of the legal constraints that normally apply. By declaring a national emergency, a decision reserved to the president, he can invoke the more than 120 special provisions in his arsenal. Indeed, President Trump has precedent on his side. President Franklin Roosevelt interred citizens of Japanese descent during World War II. Abraham Lincoln suspended Habeas Corpus during the Civil War. Much of the justice system set up after the attack on 9/11, which included secret courts, warrantless wiretapping, and indefinite imprisonment of suspected terrorists, were all defended as being necessary to invoke presidential powers because of a national emergency. While Congress passed a law in 1976 to rein in presidential power in so-called national emergencies, the President still has broad powers. He only needs to specify in the powers he intends to use, issue public updates and report to Congress every 6 months.

Query whether a “crisis” exists when immigration on the Southern border has dipped over the last 20 years. Drug traffickers pass largely through legal entry points. The caravans are minimal considering the number of overall immigrants. These would be the attack points by opponents in court challenges. Yet, the case precedent baptizing the use of emergency powers in the past along with the “easy out” for President Trump to stop the shutdown of government without looking like he is capitulating on the wall because he was now invoking his authority, makes this option a viable one for his administration. He can claim he tried to keep his campaign promises even if the courts strike down his invocation of emergency powers. Yet, the ambiguous constitutional limits combined with all the provisions allowing such a declaration are at least a basis that he is not being arbitrary and capricious and he could win in court.

The biggest obstacle to the invocation may be a sub rosa issue, i.e., the loaded gun such emergency powers can give an executive who has despotic leanings. Personally, I worry about Mr. Trump having such power in general since he seems incapable of curbing his worse nature. Supporting his right to invoke emergency powers might make a court think twice about letting the genie out of the bottle.
Make no mistake: It is never right to make people pawns. The 800,000 families affected by the shutdown is a despicable exercise of wanton power. There is no getting around the fact that they are being abused. This abuse falls on Mr. Trump and his fellow republicans since he is the agent provocateur in this scenario. Get them back to work.

Arlene Violet is an attorney and former Rhode Island Attorney General.