Posted on 01/10/2019 5:24:00 PM PST by Moseley
If President Donald Trump uses the U.S. military to build the border wall along the United States’ international with Mexico by declaring a national emergency, won’t liberals simply run to a Federal judge whom they believe to be left-wing within the Ninth Circuit and block Trump? Can Congress vote to overturn Trump’s declaration of an emergency?
No. If the federal courts actually follow the law, President Trump cannot be prevented from “reprogramming” funds appropriated for the U.S. Department of Defense and actually using the military (such as the U.S. Army Corps of Engineers) to build the border wall.
As noted in the first installment on this topic, Congress has given a president the power to declare a national emergency by 50 U.S.C. 1621 and 50 U.S.C. 1622. A declaration of an emergency allows the President to reprogram funds in the military budget. See 33 U.S. Code § 2293 “Reprogramming during national emergencies.”
Trump could reprogram funds from other parts of the Department of Defense budget — including from other DoD construction projects such as on bases, military housing, etc. — and engage in construction in areas of need for the national defense. The statute says that explicitly (although statutes are never easy reading).
But Democrats are threatening and commentators are warning that such an action would be challenged in court and in Congress immediately. Can such a plan be blocked?
(Note, although I argue in the next section that this power has been invalidated by the U.S. Supreme Court, if a court disagrees on that, a legislative veto power should block a lawsuit. Where Congress has provided a specific method for challenging a declaration of an emergency, the federal courts would normally hold that that method becomes the exclusive remedy. A lawsuit would be blocked by the fact that Congress provided a non-litigation remedy.)
Second, however, the Congressional veto process described above has been ruled unconstitutional by the U.S. Supreme Court, in INS v. Chadha, 462 U.S. 919 (1983), finding a legislative veto of Executive Branch action unconstitutional. Congress passed many laws which specifically enabled Congress to veto regulations or actions under that law. The U.S. Supreme Court found a legislative veto violates the structure or architecture of the Constitutional system.
Laws go to the President for signature or veto. Congress cannot reach over and pull a law back. Congress must pass a new law and present it to the President for signature if dissatisfied with how the law is working out. The U.S. Supreme Court had no hesitation finding that the Congress had over-reached, based only on the implied architecture of the Constitution.
NOTE: This article is continued from a first installment focusing on the the general prospects of using the military to build a border wall. READ HERE.
If President Donald Trump uses the U.S. military to build the border wall along the United States’ international with Mexico by declaring a national emergency, won’t liberals simply run to a Federal judge whom they believe to be left-wing within the Ninth Circuit and block Trump? Can Congress vote to overturn Trump’s declaration of an emergency?
No. If the federal courts actually follow the law, President Trump cannot be prevented from “reprogramming” funds appropriated for the U.S. Department of Defense and actually using the military (such as the U.S. Army Corps of Engineers) to build the border wall.
As noted in the first installment on this topic, Congress has given a president the power to declare a national emergency by 50 U.S.C. 1621 and 50 U.S.C. 1622. A declaration of an emergency allows the President to reprogram funds in the military budget. See 33 U.S. Code § 2293 “Reprogramming during national emergencies.”
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Trump could reprogram funds from other parts of the Department of Defense budget — including from other DoD construction projects such as on bases, military housing, etc. — and engage in construction in areas of need for the national defense. The statute says that explicitly (although statutes are never easy reading).
But Democrats are threatening and commentators are warning that such an action would be challenged in court and in Congress immediately. Can such a plan be blocked?
First, 50 U.S.C. §1622 allows the Congress to over-turn a president’s declaration of an emergency. If both the Senate and the House each pass s resolution terminating the President’s declaration of an emergency, than the emergency status terminates under 50 U.S.C. §1622. But clearly the Republican-controlled U.S. Senate would not join the Democrat-controlled U.S. House of Representatives. Unless a significant number of Republican Senators vote against a border wall built by the U.S. Army Corps of Engineers or contractors with military funds, Congress could not block Trump’s efforts.
(Note, although I argue in the next section that this power has been invalidated by the U.S. Supreme Court, if a court disagrees on that, a legislative veto power should block a lawsuit. Where Congress has provided a specific method for challenging a declaration of an emergency, the federal courts would normally hold that that method becomes the exclusive remedy. A lawsuit would be blocked by the fact that Congress provided a non-litigation remedy.)
Second, however, the Congressional veto process described above has been ruled unconstitutional by the U.S. Supreme Court, in INS v. Chadha, 462 U.S. 919 (1983), finding a legislative veto of Executive Branch action unconstitutional. Congress passed many laws which specifically enabled Congress to veto regulations or actions under that law. The U.S. Supreme Court found a legislative veto violates the structure or architecture of the Constitutional system.
Laws go to the President for signature or veto. Congress cannot reach over and pull a law back. Congress must pass a new law and present it to the President for signature if dissatisfied with how the law is working out. The U.S. Supreme Court had no hesitation finding that the Congress had over-reached, based only on the implied architecture of the Constitution.
In Chadha, 50 U.S.C. 1622 was one of the laws explicitly discussed. The dissenting opinion specifically warned that the Chadha decision invalidated Congress’s ability to overturn a presidential declaration of a national emergency.
Therefore, Congress cannot overturn a declaration by President Trump that the open border is a national emergency. Even if the U.S. Senate were to side with the Democrats, Chadha explicitly ruled the Congressional veto (termination) of a presidential declaration to be an unconstitutional distortion of the familiar “Schoolhouse Rock” means by which laws are passed and signed by presidents. Once a law is signed, there is no “claw back” right by Congress.
Ay, there's the rub ...
“No. If the federal courts actually follow the law, “
lolol...Yeah sure.
They have NO SAY in national security matters. PDJT should tell them to go FARK THEMSELVES.
As I posted on another thread, the Dems won’t go to court for fear of the SC ruling for Trump. That would set a hell of a precedent. They’re afraid of the power he has already.
Then again, I can’t remember ever being right.
Nicely done analysis. I have a small quibble. In INS v. Chadha, the provision of law invalidated by the court was a single-chamber veto. Would the USSC have ruled the same had both chambers (the entire branch) been required? We don’t know at this time. But, I do like the Moseley’s argument.
If the dems go to court, Trump should inform the judge the administration will not appear or cooperate in the process. The president has the paper of emergency declarations and no court or judge has the power to overrule that. You can’t defend a country by judicial fiat. What would FDR have done of a judge said shut down the Manhattan project
You got this right 100% and every other statement or comment anyone has to make about this situation is BS.
This seems simple and straightforward for PDJT to declare an emergency and move forward with border fortification.
What are the commentators saying that would allow a court challenge in the 9th circuit for example?
DEMOCRATS CRACK on THE WALL
per Breitbart
Democrats are abandoning Schumer & Pelosi.
They are cracking asking for a Partial Wall, already.
Art of the Deal!
The paint is not even dry yet on the wall.
Trump must hold out now for a FULL WALL $50 billion.
Democrat leaders must be hearing cries from their dependent masses.
Future Republican Congressmen & POTUS,
remember that PEOPLE LOVE a SHUTDOWN.
Shutdown is Winning.
Hold out for awhile. Democrats are dependent addicts.
Addicts crack quickly.
Rumor is that they want State Attorney Generals and landowners effected to file lawsuits.
You have to get over the idea that just because some one has access to print or mic, it means they know something that you don’t, or couldn’t figure out on your own.
It’s not below the 9th Circuit to ignore the law. In fact, that’s almost SOP for them.
And, I wouldn’t count on the Republicans in the Senate to go along with building the wall via National Emergency declaration. Contrary to what the author claims, it wouldn’t take a significant number of GOP senators to prevent it...unless you consider 3 a significant number.
And when will he tell us that muslims are dangerous.
In essence, Trump can tell the court that the Dems lack standing? Even SC? SC has self appropriated power before.
I think Trump’s problem is that if he does not recognize a court especially the SC, that’s going to be grounds for impeachment especially when they get the enemedia howling. The leftists are trying to put him in this box.
So, if Trump declares the emergency order to build the wall, and SC upholds it, Trump will be effectively neutered probably impeached unless.....
1. He has some superincriminating info whereby he can just start arresting Dems, media etc and putting them in front military tribunals.
2. We have a hot civil war. Perhaps CA attempted secession, or Trump baits CA into it.
3. We have a major conflict and serious flash point /hot war with China or its equivalent.
I would go back and review Sulla’s dictatorship and Caesar’s siezure of power. Both men were forced into taking control as an act of self-preservation.
“What would FDR have done of a judge said shut down the Manhattan project.”
The country was at war and united back then and any judge that tried to do something like that would be disposed of and erased from history as if he had never lived.
The problem today is that if we had a world war with China, Russia etc, the Dems would be siding with our enemies, and probably doing it openly!
The law is irrelevant. We already know RAT judges rule by whim. It all comes down to how Roberts votes .
“So, if Trump declares the emergency order to build the wall, and SC upholds it, Trump will be effectively neutered probably impeached unless.....”
Correction, if SC upholds a lower court injunction against emergency order for wall.
They check and balance ion emergency powers should be the uS congress not individual or panel of judges. Emergencies require more representation than the judiciary can provide.
It would not be the demo lacking standing. It would be the court not having the authority to rule on national emergencies. This would be a very dangerous thing.
I am familiar with both having read about 3000 pages of Roman history from Livy to the year of the four caesars. I don’t equate elected presidents with constitutional powers which can be amended with a Roman dictator. My analogy to the Manhattan project in evidence.
Trump should follow the military route for building the wall.
However, that would grant democrats a win against Trump’s insistence on getting funding from congress, and they could then take that ‘victory’ to their voters in the 2020 election cycle.
Preferably, Trump should insist on getting the funding from congress.
That’s really not how it works.
The federal courts — led by the Supreme Court — have established very strong rules about who has standing.
The Department of Justice ALWAYS challenges every lawsuit instinctively on the grounds of standing.
You seem to assume that the Supreme Court would interpret it as some kind of affront to challenge standing.
The challenge to standing is TO THE PLAINTIFF — not to the court.
The courts view it as one of dozens of ways the courts defend themselves against a flood of lawsuits. Courts think they are over-worked and over-burdened with way too many lawsuits. So courts LIKE IT when anything can make lawsuit go away. Courts act like it is some kind of an insult when someone files a lawsuit because it means more work for the judges.
The rules on standing were invented purely by judges. Standing is judges’ idea.
And EVERY TIME a lawsuit involving the government is filed, the DoJ *ALWAYS* files a challenge to standing — EVERY SINGLE TIME.
It is not something unusual.
In fact, if a defendant does not question standing, the court (at any level) will raise the question on its own — sua sponte.
If no one questioned standing, the Supreme Court would raise the question itself spontaneously.
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