Charlie Savage examines the question in the NYT:
The president has the authority to declare a national emergency, which activates enhancements to his executive powers by essentially creating exceptions to rules that normally constrain him.... The National Emergencies Act... requires [a president] to formally declare a national emergency and tell Congress which statutes are being activated....
One of the laws [Trump could point to] permits the secretary of the Army to halt Army civil works projects during a presidentially declared emergency and instead direct troops and other resources to help construct “authorized civil works, military construction and civil defense projects that are essential to the national defense.”
Another law permits the secretary of defense, in an emergency, to begin military construction projects “not otherwise authorized by law that are necessary to support such use of the armed forces,” using funds that Congress had appropriated for military construction purposes that have not yet been earmarked for specific projects....
If he invokes emergency powers to build a border wall, Mr. Trump is almost certain to invite a court battle.... Before a court could decide that Mr. Trump had cynically declared an emergency under false pretenses, the court would first have to decide that the law permits judges to substitute their own thinking for the president’s in such a matter....
ADDED: I've read a lot of the most-liked comments in the NYT and it's dismaying how little they've absorbed Savage's very clear legal discussion. They're off in their own world:
So much for the Constitution that I was taught in grade school was a marvel of governmental design. Turns out that a deranged executive can flail away with a machete, slashing everything in sight, while the other branches move in slo-mo to halt the damage. What a horror movie.
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57 comments:
I hope they've got their shovels ready.
Well you know a court will grant an injunction to stop it instantaneously. (Master of the obvious here.)
Considering Trump has scaled back his wall to a fence is a tell for me. We'll be lucky to have "No Trespassing" signs when this is over.
I find the comments at NYT on the article amusing and ironic. Substitute Obama for Trump and DACA for "border wall" in most of them, and you can't imagine those same people making the same statements.
The court can substitute its judgment for the president's. This is based on the force of publicity.
It will even be more interesting when the judge from HAWAII intervenes.
Humperdink said...
Well you know a court will grant an injunction to stop it instantaneously. (Master of the obvious here.)
Yes, so perhaps something yummy and unexpected.
Yeah, some California district court judge will issue an injunction and Trump will ignore it.
"The court can substitute its judgment for the president's."
Remember Trump's executive order ban on immigrants from certain Middle East nations where the judge divined Trump's intent based on campaign statements rather than the text of the EO?
Trump will say, I’ll obey SCOTUS but not the 9th Circuit. California is a Confederate State. VDH has written about it.
The Dems have an 8 minute response lined up that immediately follows. I’d have them respond to the wrong thing.
I think that Trump should use emergency powers to get Mexico to pay for his wall.
El Chapo is paying for the Wall.
Does Trump have emergency powers to make the wall shovel ready?
I see Ralph L had the same idea.
There's a semi-serious proposal going around that Trump should use the money the treasury confiscated from El Chapo to build the wall. It's $14 billion, more than enough for twice what he's planning. And that's how Mexico builds the wall. If it's not legal, well, it's better to ask forgiveness than permission.
Obama used to give money taken in fines from companies, and give it to friendly left leaning NGOs.
"Substitute Obama for Trump and DACA for "border wall" "
Except Obama just did a questionable executive order. It appears that we will have Trumped up "national emergency", based on 1000s of terrorists and mega-caravans, to divert money, attention, and separation of powers.
What more do you need?
Trump should use his emergency powers to force a Cash for Clunkers buyback. Like a gun buyback the Commie-Pinkos in the major cities have been offering. Stack the junk cars on the Meh-Hee-Co border until the wall funding gets passed. Then sell the junk cars to China. A win, win, win, win..........
They're off in their own world:
Why should this issue be any different?
Someone is invariably racing to get a microphone in front of Lawrence Tribe so he can explain how the Constitution doesn’t apply to Trump.
Humperdink said...
... until the wall funding gets passed
No, it’ll be a magnificent finesse and he’ll announce the shutdown over.
Except Obama just did a questionable executive order.
Which the courts intervened to stop Trump from repealing.
What I'm curious about is what Army Civil Works projects would be at risk?
Looks like a lot of water infrastructure.
One key component that would be sure to get a lot of attention is the Army's contribution to disaster recovery.
If a court rules the wall illegal, and I bet they will, wouldn't that make existing wall illegal?
Would they rule existing wall is illegal, and must be torn down? I bet they would.
slashing everything in sight
Slashing high prices! No wait, slashing unemployment.
I love all the faux outrage of building a wall as either immoral or a waste of money. Please ignore the fact we already have 600 miles of various types of fencing.
Blogger sodal ye said...
Humperdink said...
... until the wall funding gets passed
No, it’ll be a magnificent finesse and he’ll announce the shutdown over.
Big mistake. The government opens and Trump's wall is in legal limbo for years. Trump is rolled.
Trump needs construct to be underway in about a year from now.
So much for the Constitution that I was taught in grade school was a marvel of governmental design. Turns out that a deranged executive can flail away with a machete, slashing everything in sight, while the other branches move in slo-mo to halt the damage. What a horror movie.
This is pretty much exactly how I felt watching Obama for 8 years.
So much for the Constitution that I was taught in grade school was a marvel of governmental design. Turns out that a deranged executive can flail away with a machete, slashing everything in sight, while the other branches move in slo-mo to halt the damage. What a horror movie.
Much of the "horror movie" is due to decades of Congress abdicating its authority and responsibilities because Reps and Senators didn't want to make tough decisions that might blow back on them, or wanted to give a president of their own party greater powers.
I love all the faux outrage of building a wall as either immoral or a waste of money. Please ignore the fact we already have 600 miles of various types of fencing.
and where’s the immorality of having a border? Are Democrats plotting a righteous annexing of Mexico? Why aren’t these humanitarians screaming at Canada? Hell I bet CBSA monitoring of Chuck’s lunatic rants here prevent him from entering Canada- where’s the outrage?
Yeah, some California district court judge will issue an injunction and Trump will ignore it.
There’s a precedent. The 16th President of the United States (Lincoln) suspended habeus corpus during a national emergeny (the Civil War), which is provided for in the Constitution. Chief Justice Roger Taney, of Dred Scott fame, told him no he couldn’t, because suspension of habeus corpus is not in Article II, where presidential powers are enumerated.
Lincoln ignored Taney.
It would be wonderful if courts stopped this with clear and broad language that would stop future presidents from doing "emergency" things liked by either the right or the left. But law clerks (and some judges) are smart and well-trained and generally "on the left." They would certainly try to declare law that allows emergency projects they like and prohibits ones they do not.
If a court does issue an injunction (and you know activists will find a judge willing to give them the ruling they want), then, maybe, finally, the Supreme Court will wake up and put an end to this petty tyrant judiciary.
If Barack Obama can use his War Powers to initiate a war with Libya, and blithely ignore his responsibilities to report to Congress why he took the actions he did, as he was required to do under the War Powers Act, then Obama has established a precedent for President Trump to do anything he damned well pleases at any time for any reason.
Trump will declare (I do I say I do declaya) wall emergency and end shutdown. Court will block emergency wall. Everybody wins. It's a Mexican standoff where everyone shoots into the air and yells ey yie yie
The real legal question would seem to be whether any federal judge in the USA can prevent POTUS from acting, or whether POTUS would be within his authority to continue until/unless SCOTUS itself demanded it.
Yes, in general the readers of the democrat media outlets, the NYTimes/WashPost are in a very comprehensive bubble chamber.
"it's dismaying how little they've absorbed"
It's dismaying! I can't believe! Why oh why would anyone write that?!
Just progs doing their prog thing. Been that way for a century or more.
The Rubes in the bubble are you Trumpesinas whom think Dronald gives a rats ass about the wall other than political theatre
I think that Trump should use emergency powers to get Mexico to pay for his wall.
I think you should get a new argument.
The Rubes in the bubble are you Trumpesinas whom think Dronald gives a rats ass about the wall other than political theatre
Who gives a fuck why he builds it as long as he builds it?
Sounds like a great law school exam/bar exam question. Does the president have inherent authority to declare a state of emergency and build the wall? Does the president have statutory authority? Is this a non-reviewable political question?
I am sure the lefties are happy to patronize all of the homeless people that are erecting tent cities within their cities, but the reason for all of this homelessness in the face of record employment is, among other things, drug addiction.
Fentanyl is now the leading cause of overdose deaths.
And where is most of that fentanyl coming from? Mexican drug cartels who buy it from China, and smuggle it into the U.S.
So you can pretend there is no emergency and therefore no need for a wall, but the tent cities, the used needles, and the dead bodies will continue to pile up.
In 2017, more than 28,000 deaths involving synthetic opioids (other than methadone) occurred in the United States, which is more deaths than from any other type of opioid.
Turns out that a deranged executive can flail away with a machete, slashing everything in sight,
Pen and phone.
If the Pres can keep 2000 troops in syria, not sure why he can't build a wall via an emergency. I don't agree with it, but I'm not sure you can differentiate
"National emergency". He wants to build the wall, probably just as red meat for the be-foxed base or perhaps really thinks it's an effective way to implement his policy, and casts around for a way to make it happen. Ah, "National Emergency".
I had to laugh with this comment, ".....the court would first have to decide that the law permits judges to substitute their own thinking for the president’s in such a matter...." They've done this since the beginning of time and are horrible with their logic. Just look at all the judges chiming in on the immigration B.S. and being reversed at the higher court. Judges are just like politicians - liars and crooks all.
It ain't getting built Gahrie and Trump knows it. He don't care because all you people will continue sucking semen out of his cunt as long as he tries. It's the theatre that counts, not the result.
It ain't getting built Gahrie and Trump knows it. He don't care because all you people will continue sucking semen out of his cunt as long as he tries. It's the theatre that counts, not the result.
Stay classy Howard...you be you.
Trump wins even if a court shuts down a wall. It's more "elites" versus "normals". Brexit all over again.
I do worry about the precedent though. Can President AOC in 2028 declare that greenhouse gases are a national emergency and suspend habeus corpus for climate deniers?
ward said...
The Rubes in the bubble are you Trumpesinas whom think Dronald gives a rats ass about the wall other than political theatre
************************************
Howard chimes in predictably with his fallacious Argument from Bad Faith.
dull tool, man, dull tool.
This is a winning issue for Trump. If he invokes it and a court outs a stop to it, every time an illegal kills a citizen Trump can tweet out the judge’s name. John Roberts will wet his bed.
I like that Trump treats the judiciary like Red Sox fans treat the Yankees. Obama did the same. And John Roberts folded for Obama.
Trump definitely has the law on his side, in this case. The declaration itself isn't really court reviewable in any manner other than a court might declare the laws themselves unconstitutional delegations of Congressional power. Such a ruling would set a precedent that would take down pretty much all Congressional acts passed in the last half-century, and I don't think even the 9th Circuit would be willing to open that can because it would effect the Democrats far worse- there are far more on the conservative bent who would like to see such delegation of power rescinded.
ADDED: I've read a lot of the most-liked comments in the NYT and it's dismaying how little they've absorbed Savage's very clear legal discussion. They're off in their own world:
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This didn't stop the left from using a judge to overrule the President's very clear and plenary authority regarding his 90 day immigration restriction... These people have shown that the law doesn't matter to them... they will commit violence, break every law and overturn every tradition... just to stop Trump and regain power...
Watch and snort Jay. The
https://m.youtube.com/watch?v=MMzd40i8TfA
Obama did the same. And John Roberts folded for Obama.
Not that you'd read it in the news and there's the classic correlation/causation conundrum but Trump badgered the Fed Chair that the Fed were acting too aggressively, the Fed Chair mumbled some defense towards Trump...and then the Fed did exactly what Trump wanted him to do, which is to stop being so aggressive with tightening?
Not that you'd read Powell folded for Trump.
Before a court could decide that Mr. Trump had cynically declared an emergency under false pretenses, the court would first have to decide that the law permits judges to substitute their own thinking for the president’s in such a matter.
Indeed. Back in 2013, Andrew Cuomo secured passage of sweeping gun control legislation by sending a "message of necessity" to the NY legislature, thus allowing supporters of the bill to bypass what would otherwise have been a state-constitution-required 3-day waiting period during which public debate could have occurred and opponents of the bill could have persuaded legislators to vote nay. The New York courts decided that as long as the governor sent the required communication in the required form, the adequacy of his stated "necessity" for dispensing with the 3-day consideration period was not subject to judicial review.
Of course, that was Cuomo and this is Trump.
New Yorkers have been lied to and misinformed for yearrrrrrrrrrrrrrrrrrrrrrrrs.
I am perplexed and somewhat distressed by the notion that an individual third- or fourth-level federal judge can direct the policies of the United States government by fiat, not only regarding this issue but many others. How did this occur? What can be done about it? Surely the founding fathers would not have found this an equitable distribution of power.
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