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Posted on 01/08/2019 9:26:28 AM PST by jazusamo
Supreme Court Justice Joseph Story once marveled, “How easily men satisfy themselves that the Constitution is exactly what they wish it to be.” If Story returned to life today, he would find these to be familiar times, as politicians and pundits have decided that the Constitution bars an action by President Trump, even when they reached the diametrically opposite conclusion on similar actions that were taken by President Obama.
In the latest “constitutional crisis” declared on Capitol Hill, Democrats are adamant that they will not fund the signature pledge of Trump to build a border wall. In response, Trump has threatened to start construction unilaterally under his emergency powers if Congress refuses to yield to his demand for more than $5 billion. Critics immediately turned to the Constitution and, again, found clear authority against Trump. Representative Adam Schiff, Berkeley law school dean Erwin Chemerinsky, Yale law professor Bruce Ackerman, and others denounced such a move as flagrantly unconstitutional.
The concern is well founded even if the conclusion is not. Congress has refused the funds needed for the wall, so Trump is openly claiming the right to unilaterally order construction by declaring a national emergency. On its face, that order would undermine the core role of Congress in our system of checks and balances.
I happen to agree that an emergency declaration to build the wall is unwise and unnecessary. However, the declaration is not unconstitutional. Schiff, now chairman of the House Intelligence Committee, insists that Trump “does not have the power to execute” such an order because “If Harry Truman could not nationalize the steel industry during wartime, this president does not have the power to declare an emergency and build a multibillion dollar wall on the border.”
The problem is that Trump does have that power because Congress gave it to him. Schiff is referring to the historic case of Youngstown Sheet and Tube Company v. Charles Sawyer, in which the Supreme Court rejected the use of inherent powers by President Trump to seize steel mills during a labor dispute. Truman claimed a national security emergency if steel production halted during the Korean War. In a powerful check on executive authority, the Supreme Court rejected his rationale for unilateral action. The Supreme Court was correct. That, however, was 1952. More than two decades later, Congress expressly gave presidents the authority to declare such emergencies and act unilaterally. The 1976 National Emergencies Act gives presidents sweeping authority, including an express allowance to declare an “immigration emergency” to deal with an “influx of aliens which either is of such magnitude or exhibits such other characteristics that effective administration of the immigration laws of the United States is beyond the existing capabilities” of immigration authorities “in the affected area or areas.” The basis for such an invocation is generally worded and includes the “likelihood of continued growth in the magnitude of the influx,” rising criminal activity, as well as high "demands on law enforcement agencies” and “other circumstances.”
Democrats have not objected to use of this authority regularly by presidents, including roughly 30 such emergencies that continue to this day. Other statutes afford additional emergency powers. Indeed, a 2007 Congressional Research Service report stated, “Under the powers delegated by such statutes, the president may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.”
Congress has spent decades yielding authority to the executive branch. When it agreed with a president, such near imperial authority was even celebrated. Now, consider the objections from Representative Joaquin Castro, who is chairman of the Congressional Hispanic Caucus. He declared that it would be “profoundly inappropriate for the president of the United States to circumvent the legislative branch and single handedly, against the will of the American people and the American Congress, put up a wall.”
This is a curious statement from one of the many members who supported Obama when he openly circumvented Congress over immigration reforms. Obama ordered agencies to stop enforcing some federal laws and used executive orders to do precisely what Congress had refused to do. When he declared in a State of the Union address that he would circumvent Congress when it failed to approve his reforms, Democrats cheered rapturously at the notion of their own circumvention, if not obsolescence.
Likewise, Castro and his colleagues supported Obama when he ordered the payment of billions out of the Treasury into ObamaCare, after being denied the funds by Congress. These same Democrats were largely silent when Obama attacked Libya without a declaration of war or legislative authorization. Indeed, Obama funded the Libyan war out of money slushing around in the Defense Department, without a specific appropriation. I represented members who opposed that war. I also was an attorney for the entire House of Representatives in successfully opposing the ObamaCare payments. Most Democrats opposed both lawsuits. Congress can act to stop circumvention by Trump under the National Emergencies Act. Trump must notify Congress of his declaration and detail the powers being claimed under that law. Congress can and should negate the declaration with a vote of both chambers. However, that does not make the declaration unconstitutional. Any declaration would create a myriad of legal issues and likely face an immediate legal challenge. Two questions that a court would have to consider are the source of the authority and the source of any funds. The latter is where challenges could arise.
Congress gave Trump such authority in the National Emergency Act, augmenting claims of inherent authority, but the source of the money could be more challenging. Under two laws, found in Title 10 and Title 33 of the United States Code, he could seek to use unobligated funds originally set aside for military construction projects, or divert funds from Army civil works projects. There are limitations on the use of such monies, and there could be strong challenges to the use of unobligated funds in other areas. There is money there to start but not nearly enough to finish such a wall without proper appropriation. However, Obama funded an entire undeclared war in Libya out of money slushing around in the Defense Department, without the new strict constitutionalists objecting from the Democratic side of the aisle.
Courts generally have deferred to the judgments of presidents on the basis for such emergencies, and dozens of such declarations have been made without serious judicial review. Indeed, many of the same politicians and pundits declared the various travel ban orders to be facially unconstitutional, but the Supreme Court ultimately lifted the injunctions of lower courts. Moreover, Trump does not have to ultimately prevail to achieve part of his objective. Even if a court were to enjoin construction, the declaration could afford Trump the political cover to end the government shutdown, as the issue moved its way through the courts. While the matter could be expedited to move through the courts in a matter of months, the government could seek to slow walk the litigation to push any final decision into 2020.
There are compelling arguments against funding the entire wall demanded by Trump, although some added border barriers clearly are warranted. However, one can oppose an emergency declaration without claiming it is facially unconstitutional. It is not.
that does not mean they won’t run to a friendly judge and stop him.
why didn’t obamacare stop when the judge ruled it unconstitutional?
Turley covers that in the article.
Great! Now do it and stop with your empty promises.
JoMa
“Congress can act to stop circumvention by Trump under the National Emergencies Act. Trump must notify Congress of his declaration and detail the powers being claimed under that law. Congress can and should negate the declaration with a vote of both chambers.”
But that won’t happen in the Senate and if the House does it, that only hurts Dems in swing districts.
If a court does stop Trump, I think someone should go to the same court to stop troop deployments in other theatres. The judge has to be consistent. Either the president has the final call on troop deployment or he does not. A judge cannot be the final arbiter as to what constitutes an emergency with respect to troop deployments. Clearly, US troop were deployed in Libya under very dubious premises. Quadaffi was not a threat to US security and he was actually a stabilizing force in the region.
Well said.
With the number of liberal judges that pride in legislating from the bench this will no doubt turn out to be a real mess if President Trump does in fact take this route.
That said I believe SCOTUS would eventually rule for POTUS.
“Turley covers that in the article.”
And he’s a Democrat, but he’s also a Constitutional Lawyer. Bring it on RATs, you will loose!
Trump should declare National Emergency and say that Federal judges that try to stop it is illegal and his Administration will ignore the communists courts.
Bump!
Makes me thin tonight’s 8 minutes will be an announcement of Trump’s executive decision to build the wall for national security reasons.
I knew that the 8-minute address was much-watch television when I saw the photo of President Trump sitting in his oval office chair with the portrait of Andrew Jackson looking over his shoulder. Ass-whoopin’ comin’!
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Yep, it wouldn’t surprise me at all.
sec state pompeo said it will make a lot of news ...
But, successful dictators are republican saviors. Classic, ancient dictators were freely given enormous authority for a short period of time to deal with specific threats. They did not eliminate or otherwise even harm republican institutions, but operated legally outside of them, and saved them.
They issued orders that lapsed as if they never existed once the dictator’s term of office expired. A dictator leaves no imprint on the law. He establishes no precedent. The republican institutions that created the dictator operate in the background as if the dictator didn’t exist.
If Trump ever tells a court to try to enforce their ruling the republican votes for impeachment and removal will suddenly rise. The republicans want him out as bad as the Dems.
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