Fox News' senior legal analyst told Fox News' Jon Scott he believes Trump has been advised that he can't call a national emergency and then use money from the military to build his wall that wasn't already allocated for that specific purpose.
Scott asked, "Does the president have the authority to declare a national emergency and spend the money on a wall?"
Napolitano replied, “I think the law is very clear and I think the President has been advised of it that if he signs an executive order declaring a national emergency and directing the military to spend money that has not been expressly appropriated for the wall or that has not been expressly appropriated for eminent domain, since much of the real estate where they want to build the wall is privately owned, I think it’s pretty clear that a court will stop him from doing that.”
Napolitano then observed that Donald Trump might do it anyway just to give himself cover with his base.
Scott then claimed, "In that scenario, he would win by losing."
Oy. Like conservatism, Trump can never lose.
"But I'm almost certain he will lose, " the Fox News judge said.
Napolitano remarked he didn't want Trump to lose. "But the law is very clear," he warned.
He went on to explain the problems President Truman had when he tried to seize steel mills during the Korean war and was rebuked by the Supreme Court: "Declared in Youngstown Sheet & Tube Co. v. Sawyer that the president lacked the authority to seize the steel mills. Writing for a heavily divided majority, Justice Hugo Black held that the president had no authority under the Constitution to seize private property on the grounds of national security. Since the Congress had not otherwise authorized the president to seize the steel mills, the president could not do so.
Scott asked how Trump would get around a defeat like this and Napolitano said probably by "semantics."
Trump has been excellent at causing a problem, then claiming it was always there, and then making believe he rode in on his white horse to save the day.
How he gets around his claim Mexico would pay for it is still up for debate, talking points-wise.