Posted on 02/21/2019 1:56:14 PM PST by street_lawyer
The seminal case on executive authority exercised in a declared national emergency is the case in which President Nixon ordered that the steel industry be nationalized. Youngstown Sheet Tube Co v. Sawyer Sawyer v. Youngstown Sheet Tube Co, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153, 26 A.L.R.2d 1378 (1952)
The defense asserted was that the President’s order amounted to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President. President Truman claimed he was acting in a national emergency as the Commander and Chief.
It is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States, as when judicial action is needed to serve broad public interests—as when the Court acts, not in derogation of the separation of powers, but to maintain their proper balance.
Trump has decided what he thinks is the best policy for stopping illegal immigration and illegal drug and sex trafficking crossing our southern border. Congress does not agree and has passed legislation to implement its policy. When Truman tried to prohibit a union strike, something that Congress could have done by passing legislation, Justice Frankfurter wrote: The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President. Youngstown Sheet Tube Co v. Sawyer. Although Truman had the additional impediment that he was not enforcing a law that Congress had passed, the gravamen of the complaint was that Truman was undertaking a policy of which Congress specifically disapproved. Trump’s order also does not direct that a congressional policy be executed “in a manner prescribed by Congress”. In Trump’s case there are existing statutes which seem to grant him the authority to build a wall; however, Trump proposes to build a wall not in the “manner prescribed by Congress”.
In California v. Trump the same argument will be made as was made in the Youngstown case. Which is that Trump is not implementing a policy in a manner prescribed by Congress. Trump believes that the wall is essential, and Congress believes that it is not and that other means of identifying illegal activity and apprehending wrongdoers is more important. In Youngstown the court held that the power of Congress to adopt the President’s policies is beyond question. Here Congress could have authorized a wall if it wanted, but Congress has decided on alternate means which is its prerogative. The Constitution gives the President authority over the armed forces, but The Constitution did not subject [the] law-making power of Congress to presidential or military supervision or control: Youngstown Sheet Tube Co v. Sawyer.
Justice Frankfurter in the Youngstown case wrote: The Founders of this Nation entrusted the law-making power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Youngstown Sheet Tube Co v. Sawyer. Courts exist to interpret the laws and the Constitution. Justice Frankfurter wrote: The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority. Youngstown Sheet Tube Co v. Sawyer. The president cannot dictate public policy. That right is reserved to members of the people’s house when it comes to funding the government in order to carry out the policies that Congress devises.
Congress has proposed and many laws have been enacted to address the border issue. The same was true in the Youngstown case: The question before the Court comes in this setting. Congress has frequently—at least 16 times since 1916—specifically provided for executive seizure of production, transportation, communications, or storage facilities. In every case it has qualified this grant of power with limitations and safeguards. The importance of this pronouncement is that Congress had the power to authorize funding for Trump’s wall if it so chose to do so. It did not. As such the Plaintiffs may argue that there is no “urgent and impending need” for a wall. If there were Congress would have provided for the same. Justice Frankfurter put it this way: In any event, nothing can be plainer than that Congress made a conscious choice of policy in a field full of perplexity and peculiarly within legislative responsibility for choice. Youngstown Sheet Tube Co v. Sawyer. Likewise, this Congress has made a conscious choice of policy to deny funding for Trump’s wall while providing what it deemed necessary to address the issue of illegal immigration and tariffing in drugs and sexual exploitation. This Congress could not have made its choice any clearer. Its policy does not include Trump’s wall.
For those who would rely upon the discretion of the President to call for a national emergency and use whatever powers that Congress had previously approved in the event of an emergency, let them consider this statement by Justice Frankfurter: It cannot be contended that the President would have had power to issue this order had Congress explicitly negated such authority in formal legislation Youngstown Sheet Tube Co v. Sawyer. “Perchance to dream: ay there’s the rub”. This is a significant obstacle for Trump’s team of attorneys to overcome. It has been reported that Trump’s declaration of an emergency was made subsequent to signing the funding bill that prohibits such a wall as he desires. To restate the issue in simple terms. Trump’s wall will violate the law he signed just moment prior to declaring the national emergency. It cannot be contended that Trump had the power to issue his order because Congress explicitly negated such authority in formal legislation. Justice Frankfurter stated it in these words: No authority that has since been given to the President can by any fair process of statutory construction be deemed to withdraw the restriction or change the will of Congress as expressed by a body of enactments… Youngstown Sheet Tube Co v. Sawyer.
Apart from his vast share of responsibility for the conduct of our foreign relations, the embracing function of the President is that 'he shall take Care that the Laws be faithfully executed”. Art. II Sec. 3. Youngstown Sheet Tube Co v. Sawyer. By building his wall, a wall which Congress specifically considered and rejected, Trump would not be “faithfully executing” the law that Congress proposed, and he signed.
At this point given the history of events, it is not likely that President Trump will prevail in his attempt to construct the kind of wall that he has proposed or where he proposes to build it. If that is the ultimate conclusion of the courts, then his legal advisors have failed him. The President would have had a much better chance of building his wall if he had declared a national emergency immediately upon taking office. Given the many years of legislative history of border policy of funding for a wall, Trump would have had a much better chance of success in court; however, while it is true that Congress has appropriated money for a wall, its present policy specially prohibits the construction of a wall such as Trump proposes. Trump enters court a day late and a dollar short.
Nixon?
Sheet tubes, sleet cubes.
Justice for Jussie!
However, no matter WHAT Justice Frankfurter has to say, NONE of this mattered when 0bama had a pen and a phone!
Build. The. Wall. Get. It. Done. By ANY means necessary.
How many of these whiners, did anything to help, like to make sure Roy Moore won his Senate seat, or campaigned for the Republicans who lost in the midterms?
If we didn’t get what we wanted, it was because of what happened in the midterms, it greatly reduced Trump’s leverage.
Sophistry.
Both Congress and the President have the Constitutional duty to protect this country from invasion. Congress is not allowed to let their abrogation of their responsibility force the President to abrogate his responsibility.
Citing Youngstown v. Sawyer after the enactment of the National Emergency Act is like citing the Kansas Nebraska Act or the Dred Scott decision after the Civil War. Truman used his inherent Presidential Executive Authority and the Court ruled against him. In 1976, the Congress delegated that authority to the President and it has never been challenged. Nice try.
The National Emergencies Act (NEA) (Pub.L. 94–412, 90 Stat. 1255, enacted September 14, 1976, codified at 50 U.S.C. § 1601–1651) is a United States federal law passed to end all previous national emergencies and to formalize the emergency powers of the President.
Trump’s the best president in modern times.
Ronald Reagan caved in on a general amnesty.
The show ain’t over yet, pilgrim. Let Trump be Trump.
it greatly reduced Trump’s leverage.
Yeah, that and ten cents won’t buy you bubble gum pal.
Hundreds of thousands of illegal aliens are coming in to occupy OUR NATION. Drugs are pouring in over the border. Cartel members now live on certain mountain ranges in our nation, along trails used to smuggle drugs in.
Our citizens are getting killed, raped, our children are being sodomized and otherwise sexually abused, our communities are being exposed to gangs, drugs, intimidation, other crimes, and duress.
Nope, no one could call this an national emergency. No one could call it a effort to end an affront to humanity itself.
This doesn’t even begin to address the crimes committed against the aliens themselves on the way here. Children are abused, sent off by parents without guardians. Women in large numbers are being raped. The children themselves are being molested. They are threatened with death if they tell.
Take your opinion to Democrat Underground, where you will find plenty of support for it.
That's when I stopped reading. I know something about Youngstown Steel and fail to see any but the most superficial comparison to the current emergency declaration.
Frankfurter is a weeny.
Exactly!
Come back an apologize for this drivel after you are proven wrong.
“...his legal advisors have failed him.”
A lot of people have failed him. The GOP led House and Senate, the GOP never-Trumpers... the people like Coulter who stomp their feet and call him names because he can’t do it alone.
Except this is the border that we are talking about and it is a direct responsibility of the commander-in-chief to keep that border secure. So it IS different. He has the power to secure that border without the emergency. So screw the judges and “The first thing we do, let’s kill all the lawyers”.
Go back to the street...and yell.
The Wall is only step one. The fact is the wall needed to already have been built and he should have already moved onto other steps like mandating E-Verify and ending things like H1B visas.
Trump’s comments on how America needs more insourcing with H1B visas is discouraging because he’s suggesting Americans shouldn’t have rising wages, which is a Chamber of Commerce type talking point.
You got that right. Nationalizing private industry is a far cry from a President fulfilling his Constitutional duty to defend the borders of the US.
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