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Judge Napolitano Calls Trump’s State of Emergency Idea ‘Unconstitutional’

Declaring a state of emergency to build a wall along the U.S.-Mexico border would be unconstitutional, according to Fox News legal expert Judge Andrew Napolitano.

Judge Napolitano National Emergency
Photo Credit Gage Skidmore

Napolitano made the declaration during Tuesday’s “Fox and Friends” morning show. The libertarian told host Steve Doocy that Trump “can declare a state of emergency, but the declaration itself does not give him the power to take private property.”

While many Fox anchors and guests have stuck with Trump through the partial government shutdown, it looks like not all of them will fall into line. Napolitano explained during the segment that parts of Texas where the wall would need to be built are currently private property. In order to build the wall, “the government would have to condemn [the land] and pay for it.” But Trump doesn’t have the authority to do that on his own.

The judge explained that Trump has to have congressional authorization to do it, because “he can’t spend money without congressional authorization.” While an emergency declaration can help Trump mobilize assets, it doesn’t let him “to take or occupy property–and it doesn’t allow him to spend money that Congress hasn’t authorized.”

Other anchors and guests on Fox News have called Trump’s national emergency idea a good one. Sean Hannity is among them.

However, the Fox News legal expert disagrees. Napolitano explained that, if the president was allowed to do it, then we would have seen it done before. He added, “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.”

While Trump can make promises and claim to be able to do things, the fact is, even he can’t circumvent the constitution in this case. Napolitano told “Fox and Friends” that Trump ‘can’t change the law, and he can’t avoid the Constitution.”

But he can try. Check out the clip below:



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