This article covers, in exhaustive detail, each legal point raised by this Executive action.
The existing body of settled law insures that, indeed, the President can fund all legitimate requirements created by a National Emergency.
Very comprehensive and convincing article.
Yeah, but Obama was a Light Worker, Orange man isn’t.
Barry left behind a pen and a phone. Trump is doing it the right way.
I wonder what PDJT will do with all the traps in the current bill?
He has not signed and I heard on the radio they wer wanting to do a CR for one week while they look at the Bill.
Signing this bill is a mistake. Shutdown the government.
From what I understand there are still national emergencies that Bill Clinton imposed that are still in place
Napolitano is a Rat worm. Unfortunately there are a number of Rat Judges who no doubt have the injunctions already written.
Roberts has the knife ready for Trumps back. I think unless Trump is willing to go Andrew Jackson we won’t be getting the wall. It amazes me how little regard the GOP has the base. They hold us in contempt with this “where are we going to go” attitude. I really hate the bastards.
“If the federal courts actually follow the law..”
Oh, you’re KILLING ME!!! STOP IT!!! That’s HILARIOUS!!! (-:
The National Emergency authority goes well beyond the narrow issue of building a wall. This will also allow Trump to overrule the nonsense in the appropriations bill that will pass today. The restrictions and limitations of that action will only apply to the monies appropriated by that bill which is only for the next 7 months. Trump can easy get around those restrictions by reprogramming other funds. The Democrats and the media will squeal like stuck pigs, but Trump but will be able to, you know, trump them.
And Trust in Trump
Trump has the right to build a wall. Anything he says and does can be held against illegals in a court of law.
The president should put the court on notice that they have no standing in national emergencies. The check and balance on the presidents emergency powers is the congress. You cant respond to emergencies when any judge can overrule your actions.
The congress can terminate a president’s emergency declaration. THAT is the check and balance on presidential power. Trump should tell the court, you have no jurisdictions for emergencies. The country cannot respond to emergencies on the basis of judicial fiat.
HERE IS SOME INFO.
What the Law Does
The NEA authorizes the president to declare a national emergency, which declaration activates emergency powers contained in other federal statutes.3 During the 2009 H1N1 influenza pandemic, the presidents declaration of a national emergency under the NEA, coupled with the HHS secretarys prior determination of a public health emergency under Section 319 of the Public Health Service Act (PHSA), permitted the activation of Social Security Act (SSA) Section 1135 waiver authorities. (See Figure A for the text of the 2009 H1N1 NEA declaration.)
How the Law Works
The NEA does not provide any specific emergency authority on its own, but relies on emergency authorities provided in other statutes. A national emergency declaration allows for the activation of these other statutory authorities. Emergency statutory provisions are not activated automatically, however; they must be specifically identified in the presidents declaration before these authorities may be given effect.
NEA Section 201 authorizes the president to declare a national emergency. The proclamation of a national emergency must be immediately transmitted to Congress and published in the Federal Register.1,2 Under NEA Section 301, statutory emergency authorities enabled by the national emergency declaration cannot be exercised until the president specifies the provisions of law under which the president or other officials will act. Such specification may be made either in the declaration or in subsequent Executive Orders published in the Federal Register and transmitted to Congress.
A national emergency can be terminated if the president issues a proclamation or if Congress enacts a joint resolution terminating the emergency. A national emergency will terminate automatically upon the anniversary of the proclamation unless the president renews the proclamation by transmitting notice to Congress within a 90-day period prior to the anniversary date and publishing it in the Federal Register.
Immunity and Liability Issues
The national emergency provisions of the NEA do not address liability issues or provide any immunity. The act could be used to activate emergency authorities in other federal statutes that provide immunity during emergency events.
How the Law Affects States
National emergency declarations under the NEA can impact states through the federal statutory emergency authorities activated once the NEA declaration is made. The most recent example of this effect was the activation of SSA Section 1135 waiver authority during the H1N1 influenza pandemic.
DECLARATION OF A NATIONAL EMERGENCY WITH RESPECT TO THE 2009 H1N1 INFLUENZA PANDEMIC
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
October 24, 2009
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.) and consistent with section 1135 of the Social Security Act (SSA), as amended (42 U.S.C. 1320b-5), do hereby find and proclaim that, given that the rapid increase in illness across the Nation may overburden health care resources and that the temporary waiver of certain standard Federal requirements may be warranted in order to enable U.S. health care facilities to implement emergency operations plans, the 2009 H1N1 influenza pandemic in the United States constitutes a national emergency. Accordingly, I hereby declare that the Secretary may exercise the authority under section 1135 of the SSA to temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Childrens Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule throughout the duration of the public health emergency declared in response to the 2009 H1N1 influenza pandemic. In exercising this authority, the Secretary shall provide certification and advance written notice to the Congress as required by section 1135(d) of the SSA (42 U.S.C. 1320b-5(d)).4
The national emergencies act of 1972 gives the house and senate the power to terminate emergency declarations if voted on by veto proof majorities. They enacted this law and so I’m not sure the courts can play a role. FWIW, I’m not a constitutional lawyer.
Well, I did hear that nasty said some future demolibs (p)resident could declare an national emergency about..........gun violence. Not quite the same nasty.
That was so incongruous with today's judicial reality that I choked on my dinner laughing.
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.
Don't leave out the Sea Bees . . . and anyone else in uniform who is patriotic (which would be just about all combat troops and some of those with desk jobs). We have 1.3 million Americans on active duty, and we need 1,900 miles of border wall. That's about 700 troops per mile of wall - unrealistic because some have real work or are unsuitable, but we have much more than enough manpower if we have the will to use it.
The National Emergency will be declared tomorrow by the President. His Administration has identified $8 billion that can be applied to the requirements of the National Emergency and those funds will not be restricted by this bill that the Congress will pass tonight. I wonder what the Never Trumpers will think of that?
Article is worth archiving as a PDF.
What irritates me is the calm acceptance of everyone that “this emergency decree can be adjudicated in court.”
Well, maybe so, but what is NOT in the Constitution is that a lower level Federal judge can veto a Congressionally authorized Presidential executive order.
Paging Ben Shapiro.