१६ फेब्रुवारी, २०१९

"President Trump... pointed to nearly five dozen previous instances in which presidents of both parties have declared emergencies.... But there is no precedent for what he has just done."

Charlie Savage writes in the NYT.
None of the times emergency powers have been invoked since 1976, the year Congress enacted the National Emergencies Act, involved a president making an end run around lawmakers to spend money on a project they had decided against funding.
I don't think it's exactly true that Congress has decided against funding. They put some funding in the budget bill, there's been a lot of talk about deferring the issue of the wall, and there hasn't been any vote against the wall. So Savage is cheating right at the beginning of the argument. I think I can see that he wants to say that what Trump is doing is unlike all the other precedents, so he's characterizing it in a way that gets to that outcome.
Congress has... enacted a statute that gave presidents, in a declared emergency “that requires use of the armed forces,” the power to redirect military construction funds to build projects related to that use. It is that statute that Mr. Trump is relying upon, and his administration argues that this means he is exercising authority that lawmakers wanted the presidency to be able to wield.

But Elizabeth Goitein, who oversaw the Brennan Center study [of presidents' use of the emergency power, said]... “There is nothing approaching an ‘emergency’ in this situation, no matter how loose a definition you use.... And Congress has made it as clear as it can that it does not want the president to use funds for this purpose, so this is the president using emergency powers to thwart the will of Congress. That is very different from how emergency powers have been used in the past.”
She's relying to heavily on the notion that Congress has expressed its will and rejected the building of the wall. Where did that expression occur?
In a briefing with reporters on Friday, the White House identified only two previous instances in which presidents relied on emergency powers to spend funds on something different than what Congress had appropriated them for. Both involved military construction associated with wars: one under President George Bush’s Persian Gulf war emergency declaration, the other under President George W. Bush’s emergency declaration after the Sept. 11 attacks. Neither funded projects that Congress had previously weighed and rejected....
The budget bill contains $1.375 billion of funding for new border barriers, so where is the rejection? Is the simple failure to provide the full asked-for amount to count as a rejection of wall-building?
In the 1976 act, Congress turned off numerous old “emergencies” that had been lingering for many years and created a process presidents must follow when invoking such statutes. But the overhaul did not include defining limits on when a president could decide that a qualifying emergency existed, preserving White House flexibility.
Well, then, how do you stop Trump?
One check against abuse of that power eroded quickly: Congress had intended for lawmakers to have the power to overrule a president’s declaration by passing a resolution with a simple majority vote. After a 1983 Supreme Court ruling, however, presidents gained the power to veto such resolutions. That weakened Congress’s hand because it takes two-thirds of both chambers to override a veto....
They've had more than 30 years to repeal or rewrite the statute so that they're not giving so much away to the President. They tried to create a veto power for themselves, and that overstepped the Constitution. So the President has more power than Congress originally meant to give him, but he still has that power.
[S]everal legal experts said there was another possible long-term consequence that had received less discussion: by violating that norm of self-restraint, Mr. Trump may prompt Congress to eventually take back some of that power from the presidency — at least in a post-Trump era, when a succeeding president might be willing, or believe that it is politically necessary, to sign such a bill.
They're saying Presidents need to be careful using the power Congress gave them, or Congress might pass a new statute, taking back the power that they originally only meant to give while maintaining a veto power of their own. The Supreme Court told them they couldn't have the veto, and yet Congress hasn't revoked the never-intended presidential power. But it might, the legal experts said. It hasn't in 30+ years, but if Trump isn't careful, it might! So Trump should be careful. Okay, but he already chose to use the power, so it's too late for the wished-for self-restraint. And if you say that presidential self-restraint is the only limit, you concede that there isn't a legal ground to stop him.

११० टिप्पण्या:

Kevin म्हणाले...

UNPRECEDENTED!

SHREDDING THE CONSTITUTION!

AUTHORITARIAN!

It’s no longer the news, it’s just talking points repeated at regular intervals.

Howard म्हणाले...

Ann hates sloppy writing, got it.

Howard म्हणाले...

TRAFFICKING OF GIRLS!

INVASION BY HORDES OF MS13!

CREEPING SOCIALISM!

It’s no longer the news, it’s just talking points repeated at regular intervals.

Kevin म्हणाले...

But there is no precedent for what he has just done.

That’s a conclusion masquerading as fact.

If only the media had to begin sentences like this with, “In my opinion...”, people would see the game for what it is.

If it were clearly labeled an opinion, readers would be cued to ask who this person is and why their opinion should be given weight at all.

traditionalguy म्हणाले...

Spot on analysis, Dear Law Professor. Now if we can get Scot Adams on Trump's side.Americans win the Wall that the American's Congress promised Americans for 30 years but then sabotaged it and laughed while pocketing hundreds of millions of dollars in " Campaign Contributions."

We need to impeach Congress.

paminwi म्हणाले...

https://www.lawfareblog.com/how-congress-and-president-obama-made-trumps-wall-possible

Something interesting to read. When I need a lawyer's take on all things legal I check to see what Josh has said. One source for me who seems to never be over the top crazy over what ever the issue is.

Howard म्हणाले...

Blogger traditionalguy said... We need to impeach Congress.

That didn't go so well in 2018

Kevin म्हणाले...

Two of your “talking points” are facts Howard.

Pelosi and Schumer may not wish to focus on them because they aren’t in dispute.

Lucid-Ideas म्हणाले...

"They're saying Presidents need to be careful using the power Congress gave them, or Congress might pass a new statute"

One word. Obama. Congress didn't pass a new statute. The people "elected" a new statute. His name was Trump. He was a direct reaction to Obama's overeach. This is what happens and the pendulum swings just as far the other way. "Your enemy gets a vote" and other euphemisms...

I think we're done here.

roesch/voltaire म्हणाले...

Althouse your are right these reporters have it wrong as the only person who thinks this bill doesn’t fund the wall is Trump because it is never enough for him and that’s the national emergency.

MadisonMan म्हणाले...

It's bad when Trump does it because reasons.

Sincerely,

The New York Times.

Phil 314 म्हणाले...

Could have gotten all this ( and a bag of chips) with no fuss, no muss back in December.

Trump the drama king.

Mark म्हणाले...

I would need to check, but it is my understanding that, the issue of appropriations aside, that Congress decades ago passed legislation directing that the wall be built. It's just that in the years following, they have not appropriated the money (for whatever reason).

That congressional directive to build the wall is still in effect. At the same time, whatever Trump might have officially declared, there is a de facto emergency of tens of millions of foreign nationals breaching the borders of this sovereign nation and roaming around its territory with impunity. Combined together, that equals reallocation of funds that Congress has already appropriated and given discretion in how those funds are applied.

Humperdink म्हणाले...

" “There is nothing approaching an ‘emergency’ in this situation .."

I dunno, 20-30 million undocumented democrats invading the country would count as an emergency in my book.

And who knows the real number, since checking off "non-citizen" on the census form has been ruled unconstitutional.

We live in surreal times.

Kevin म्हणाले...

Congress doesn’t get to decide national policy on its own.

If it isn’t careful, the Executive might use its power to declare a national emergency, weakening Congress’ power to constrain the Executive through legislation.

Be careful!

MadisonMan म्हणाले...

Blogger traditionalguy said... We need to impeach Congress.

That didn't go so well in 2018

Really? Now -- I don't really keep track, but my feeling is that the percentage of incumbents who were not re-elected was smallishly bumped up. (Looks it up: 18% of the seats have new representatives in 2019. There were only 59 -- 14% -- in 2015, for contrast). So maybe you're wrong.

Alas, the do-nothing Rep for Madison was re-elected.

gspencer म्हणाले...

The drug problem, touching all Americans (some obviously more than others) spans the country. So too do all the illegals themselves (crime; demands for welfare; undercutting labor markets, and more), but lets keep the focus simply on the supply of drugs coming in via the Mexican gangs. By controlling that spigot a significant choke point of drug entry will be reduced. That in and of itself is a countrywide benefit.

David Begley म्हणाले...

Speaking of legal experts, Ann Althouse is one of the best in America. Certainly better than the woman at the Leftwing Brennan Center.

wendybar म्हणाले...

Lucid-Ideas said...
"They're saying Presidents need to be careful using the power Congress gave them, or Congress might pass a new statute"

One word. Obama. Congress didn't pass a new statute. The people "elected" a new statute. His name was Trump. He was a direct reaction to Obama's overeach. This is what happens and the pendulum swings just as far the other way. "Your enemy gets a vote" and other euphemisms...

I think we're done here.

THIS^^^^^^^ 100%

Kevin म्हणाले...

"President Trump... pointed to nearly five dozen previous instances in which presidents of both parties have declared emergencies.

If this were Obama, the headline would read “sixty”.

Since it’s Trump, they go out of their way to plant the number five into readers minds.

MadisonMan म्हणाले...

The 112th Congress also had a big turnover, although still less than 1 in 5.

Laslo Spatula म्हणाले...

"The budget bill contains $1.375 billion of funding for new border barriers, so where is the rejection?"

Our betters know that the money wasn't really meant to support the wall.

Rather, it was a public 'Fuck You' to Trump by pointedly giving him only a small fraction of what he had asked for.

Althouse's point is based on facts and reasoning; the elites know that it was always intended as a grift, and will pretend it doesn't mean what it legally means.

And there are plenty of judges ready to sign off on pretending it doesn't mean what it legally means.

The True National Emergency is a corrupt and rancid bureaucracy that refuses to enforce laws.

And no doubt there are plenty of judges ready to sign off on the legality of a corrupt and rancid bureaucracy that refuses to enforce laws.

To add an addendum to Dylan:

To live outside the law you must be honest.

To enforce the laws requires no such thing.

I am Laslo.

Jimmy म्हणाले...

Congress has avoided its responsibility for decades, preferring that the Executive or Judicial branches do the heavy lifting and take the blame for mistakes. If Congress desires a different outcome, either from an Obama or a Trump, then it should, oh I don't know, start doing its job. Debate, legislate, research etc. Maybe even give a damn about the future of America and the American people.

Trumpit म्हणाले...
ही टिप्पणी लेखकाना हलविली आहे.
Trumpit म्हणाले...
ही टिप्पणी लेखकाना हलविली आहे.
Mark म्हणाले...

Here's the president bragging again about all he's done and pointing out the seriousness of border security --

All Americans, not only in the States most heavily affected but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. The jobs they hold might otherwise be held by citizens or legal immigrants. The public service they use impose burdens on our taxpayers. That's why our administration has moved aggressively to secure our borders more by hiring a record number of new border guards, by deporting twice as many criminal aliens as ever before, by cracking down on illegal hiring, by barring welfare benefits to illegal aliens. In the budget I will present to you, we will try to do more to speed the deportation of illegal aliens who are arrested for crimes, to better identify illegal aliens in the workplace . . . We are a nation of immigrants. But we are also a nation of laws. It is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years, and we must do more to stop it.

Karen of Texas म्हणाले...

This just highlights the mendacity of the political hacks in DC. They could remedy this situation by repealing or rewriting the statute - but they hesitate because they are trying to assess whether or not or how their power structure would be impacted.

"It [Congress] hasn't in 30+ years, but if Trump isn't careful, it might! So Trump should be careful."

Neither side will do squat to clean up the mess they've created because of the potential ramifications from all of the scenarios that could emerge after the 2020 election.

Trump might not be reelected, Democrats keep House and take Senate. ("Crap! We really screwed ourselves." ~ Democrats)

Trump might not be reelected. Democrats keep House, Repubs keep Senate.

Trump might not be reelected. Repubs take House, keep Senate.

Trump might not be reelected. Democrats take Senate, Repubs take House.

Trump might be reelected. Democrats keep House, Repubs keep Senate.

Trump might be reelected. Democrats keep House, Repubs keep Senate.

Trump might be reelected. Repubs take House, keep Senate.

Trump might be reelected. Democrats take Senate, Repubs take House.

Any of these scenarios is possible and the potential negative impact to either party's power structure keeps them from bolding grabbing for the brass ring and doing what is best for the continuation of a Constitutional Republic way of governance. They don't want to potentially cut themselves off at the knees, so the status quo is just fine - because it can potentially be leveraged to further their Party's power.

Trumpit म्हणाले...

If Schlump is for something, I'm opposed to it unless or until there is a consensus among intelligent people of integrity that his proposal is a good one. He pulled his WALL proposal out of his fat A$$ to fulfill a campaign PROMI$$ that MI$$E$ the mark. Where are the environmental impact studies on his JACKA$$ WALL? I wouldn't be surprised to find out that Schlump and/or his cronies in the construction business will profit handsomely from building a goddam WALL. We saw that with the war profiteering during George Bush's Iraq War fiasco. Remember Blackwater & Haliburton?

Birches म्हणाले...

If Mike Lee says it's constitutional, it's constitutional. Everything else is gnashing of teeth.

wendybar म्हणाले...

Good one Mark @ 8:08am

Mark म्हणाले...
ही टिप्पणी लेखकाना हलविली आहे.
Howard म्हणाले...

Madison Man: Because as you imply congress was impeached in 2018, then Trump got all his money for the wall, right? No need for emergency

narciso म्हणाले...

Exactly Karen, I think the later scenarios are more likely.

Sebastian म्हणाले...

"So Savage is cheating right at the beginning of the argument."

"I can't believe prog Savage is cheating right at the beginning of the argument!"

It's so sad! It's terrible!

Say it ain't so!

Anyway, get back to us when you find an example of a prog arguing anything in good faith.

Bill, Republic of Texas म्हणाले...

Could have gotten all this ( and a bag of chips) with no fuss, no muss back in December.

Trump the drama king.


I don't disagree with anything you said. But I seemed to have worked for Trump. He has the Dems out in the open arguing for open borders. I'm mean seriously, the Speaker of the House said border walls are Immoral!

The next election is going to be an election about immigration. Soon we will have clarity about what the country wants. That is a good thing.

Guildofcannonballs म्हणाले...

"She's relying to heavily" without a too too?

Ambrose म्हणाले...

Sort of a dog bites man headline. It would be surprising if one could not distinguish any particular emergency from the others. By their nature, emergencies are generally unique.

Mark म्हणाले...

From the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA or IIRAIRA), Division C of Pub.L. 104–208, 110 Stat. 3009-546, enacted September 30, 1996 --

SEC. 102. <> IMPROVEMENT OF BARRIERS AT BORDER.
(a) In General.--The Attorney General, in consultation with the Commissioner of Immigration and Naturalization, shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.

Phil 314 म्हणाले...

I don't disagree with anything you said. But I seemed to have worked for Trump. He has the Dems out in the open arguing for open borders. I'm mean seriously, the Speaker of the House said border walls are Immoral!

To what end? Republican had majorities in both Senate and House and what happened, a tax bill and prison reform. I support both but for all of the sound and fury of the past two years I would have expected more.

Put down the f’ing twitter and either develop a strategy or get out of the way.

This isnt Trump Derangement Syndrome, it’s Trump Fatigue Syndrome.

Gretchen म्हणाले...

Obama's DACA declaration basically ignored the existing laws. How were people already in the country an emergency?

People invading the country with drugs and sex-trafficking is an emergency.

Bruce Hayden म्हणाले...

“And there are plenty of judges ready to sign off on pretending it doesn't mean what it legally means.”

I love how Ace of Spades, I believe, has taken to calling them Hawaiian judges, like “a Hawaiian judge in New York”.

The Godfather म्हणाले...

I have evidence that the Democrats know that Trump is going to win this one. On Good Morning America this morning, one of their talking heads was asked whether Trump might prevail against challenges to his emergency declaration, and he responded that Trump has already broken his campaign promise, because the promise included Mexico paying for the wall. Seems to me you wouldn’t talk about Mexico not paying unless you know you’re going to lose on stopping the wall.

wendybar म्हणाले...

I agree Gretchen!

Milo Minderbinder म्हणाले...

Trump is using Obama's 2011 emergency EO to stop international crime cartels, including Mexican drug gangs, as a basis for this EO. If the executive branch is overreaching, then it started (or continued) on Obama's watch. Get some popcorn....

narciso म्हणाले...

Yes he was going by a law introduced but never passed in 2001, but three judges have signed off on it.

JayDee77 म्हणाले...

"I didn't need to do this" ... if Congress had done their job and protected the border.

MayBee म्हणाले...

Does anyone else think its weird that Democrats don't want a border wall and don't want the census to ask for citizenship?
Democrats or more liberal commenters here -- tell me the downside of the wall and the census question.

अनामित म्हणाले...
ही टिप्पणी लेखकाना हलविली आहे.
MayBee म्हणाले...

Maybe not the downside, but the big argument against them.

Unknown म्हणाले...

> UNPRECEDENTED!
> SHREDDING THE CONSTITUTION!
> AUTHORITARIAN!

> TRAFFICKING OF GIRLS!
> INVASION BY HORDES OF MS13!
> CREEPING SOCIALISM!

The first batch can't be measured the second can be counted (including the freedom index for socialism).

अनामित म्हणाले...

Humperdink: I dunno, 20-30 million undocumented democrats invading the country would count as an emergency in my book.

You have to understand the progressive mindset, Hump. They don't do long-term perspective. There are no slow-rolling disasters, there are no slippery slopes, there are no unintended negative consequences to feelz-good policy.

It doesn't matter that what reactionary buzz-kills predict about the long-term consequences of damn-fool policies always seems to come to pass, as long as it doesn't come to pass the day after implementation of the policy. They don't perceive cumulative change. If no obvious major negative change can be perceived from one day to the next, then nothing of consequence is happening. They have a knack for adjusting to the "new normal" without ever recognizing that anything has actually changed. Don't ask them to think about immigration from the perspective of, say, 1965-2019. 2017 to the present is the best they can manage.

Laslo: The True National Emergency is a corrupt and rancid bureaucracy that refuses to enforce laws.

And no doubt there are plenty of judges ready to sign off on the legality of a corrupt and rancid bureaucracy that refuses to enforce laws.


Exactly. But if the corrupt and rancid bureaucracy refuses to enforce laws you don't want enforced, you tend not to perceive a problem at all, let alone an "emergency". Lacking hindsight or foresight about the consequences of imprudent immigration policies in the first place, it's unlikely that you're going to dedicate any serious thought to the consequences of acceding, indeed cheering on, this level of lawlessness. So your response is to sit around wanking about the definition of "emergency".

Unknown म्हणाले...

> On Good Morning America this morning, one of their talking heads was asked whether Trump might prevail against challenges to his emergency declaration, and he responded that Trump has already broken his campaign promise, because the promise included Mexico paying for the wall.

Dale delivering the news...

BUMBLE BEE म्हणाले...

To all this I say.. Lock and load Donald! To the trolls I say... **** ** *** and don't leave six for pall bearers.

Bruce Hayden म्हणाले...

“I have evidence that the Democrats know that Trump is going to win this one. On Good Morning America this morning, one of their talking heads was asked whether Trump might prevail against challenges to his emergency declaration, and he responded that Trump has already broken his campaign promise, because the promise included Mexico paying for the wall...”

There are apparently three sources for funds for the wall, and the plan is to divert funds from them in sequence. The third is apparently the fund for money seized from criminals, and, in particular, drug traffickers. Coincidentally, there was a conviction last week in federal court of maybe the biggest drug kingpin in the world, Mexican "El Chapo", and that allows the feds to seize his ill gotten gains, which they are apparently going to try to do. And some of that is likely going to end up helping fund the wall.

Breezy म्हणाले...

A recent poll had Trump at 50% favorable among Hispanics. Will this wall resistance backfire on Dems?

Ann Althouse म्हणाले...

Is it unconstitutional in the context of all the other things that could be called unconstitutional but that have already been declared constitutional?

That's the question to be answered in court.

mockturtle म्हणाले...

The only reason so many don't believe illegal immigration is an emergency is that the completely biased media outlets don't report on it. If it isn't shown on CNN, it doesn't exist.

Browndog म्हणाले...

With this declaration, Trump has kept his promise to "build the wall" by doing everything possible within his power to get it done. The democrat strategy to deny Trump his No.1 campaign promise, thus separating him from his base is now moot.

The only question remaining is how far democrats are willing to go to do the bidding of billion dollar drug cartels in the name of 'compassion' and 'morality'.

Ray - SoCal म्हणाले...

And how many people are afraid to even answer polls, much less say anything that could be considered Racist. Supporting Trump is seen by many as Racist.

It's already back firing. Based on the Democratic political theory, Trumps popularity should be much lower among Democratic Voters. It's amazing it is so high.

Trump being at his second best overall popularity is a game changer politically.

Congress popularity is at 19%.

And the Democratic Positions that Trump is high lighting, may make that worse. Trump is fighting on favorable ground, and forcing the Democrats to fight on horrible political positions. This works against GOP types that don't punch back, and show the emperor has no clothes on, but Trump punches back and is willing to destroy the gas lighting being done by the Democrats and their allies in the Media, Education, Silicon Valley, and other members of the so called Elite.

>A recent poll had Trump at 50% favorable among Hispanics. Will this wall resistance
>backfire on Dems?

Bob Boyd म्हणाले...

Look, Democrats don't need to be restrained by the Constitution because they are smart and good. It's not even a concern.

Republicans? Well that's a different story init?

Ray - SoCal म्हणाले...

Some major things happening:

1. Russian Probe is ending soon, this removes a lot of danger / focus to the Trump administration. And their may be a backlash / loss of credibility against those that pushed it.

2. Trumps increase in popularity.

3. Trump showed the shut down threat did not hurt him much.

4. Democrats are continuing to over reach politically. The New Green Policy, Tear Down That Wall, Medicare for All, etc. Trump is showing he is the adult in the room, and the rational one.

5. Overseas, huge backlash against the Elite. France, Italy, England, Brazil.

6. Venezuela is continuing to implode.

7. Trade way with China is not the end of the world.

8. Tech Oligarchs/ Titans are showing they have feet of clay.

9. Hard left is demanding impeachment against Trump.

10. Trump is showing he is the not a warmonger overseas.

11. Continued Antisemitism being cordoned within the Democratic Party.

12. Whatever you call that is going on in Virginia. It removes the use of Racism Rhetoric against Trump.

13. Economy keeps on growing.

14. Unemployment keeps on going down.

15. Trump is connecting with ordinary people, and Dems are showing they are way out of touch.

n.n म्हणाले...

They persist with an affirmative resistance to civil rights, our Posterity, equal rights, and emigration reform.

mockturtle म्हणाले...

If the Dems should [God forbid!] take the White House and the Senate, they would likely call Climate Change an emergency and legislate accordingly. This will also backfire on them because their air travel could be restricted. They would be forced to us high speed trains from California to DC. :-)

n.n म्हणाले...

Medicare for All

Montana is the latest evidence that the problem with affordable medical care is price, not cost, Medicare is underfunded, and Medicaid (e.g. Obamacare) serves to exacerbate redistributive change; and availability is strained by excessive (e.g. labor arbitrage, democratic gerrymandering, selective-child replacement) and unmeasured (e.g. illegal) population bombs.

JAORE म्हणाले...

I'm sure, just sure that if the D party gains back both houses of congress and the White House, they will limit the emergency powers legislatively.

rcocean म्हणाले...

Look, if Trump if going against the will of Congress, then Congress can easily fix that. Althouse needs a Constitutional Principle Bullshit tag. All these Never trumpers and Liberals had very little problem with Obama's executive orders. Now they're pretending to be the great enemies of the "imperial presidency"

But liberals have always been like that. Arthur Schlesinger wrote book after book glorifying the US Presidency, especially his great friend JFK - but when Nixon became president he wrote a book called "The Imperial Presidency" argueing that "Things have gone too far"

Hey Skipper म्हणाले...

If the illegal immigrants in their tens of millions were coming across the Rio Grande in Brooks Brothers suits and carrying suitcases stuffed with law degrees, there would have been a 100' wall from Brownsville to San Diego 40 years ago.

n.n म्हणाले...

The opposition to civil rights is coincident with support for immigration reform (e.g. refugee crises, labor arbitrage, selective-child replacement) in lieu of emigration reform and human rights in social justice zones.

Supporting Trump is seen by many as Racist.

Diversity or color judgment is a clear and Progressive Condition.

rcocean म्हणाले...

If Hillary had been elected, the Kagan SCOTUS would've declared the immigration laws unconstitutional and repealed the 2nd Amendment. I'm positive of that.

rcocean म्हणाले...

Look the American people want the immigration laws enforced. If Congress doesn't like it, then repeal the law. But they don't have the guts.

cyrus83 म्हणाले...

Considering national emergencies have been declared several times over the affairs of other nations, there doesn't seem to be a very high bar to clear for declaring an emergency. 8 out of Obama's 10 emergencies still in effect deal mainly with situations in foreign nations (Somalia, Libya, Yemen, Ukraine, South Sudan, Central African Republic, Venezuela, Burundi).

This will go to the Supreme Court and I expect Trump will win 5-4 under the current makeup. There is nothing unconstitutional about building a wall, which is evident by the fact that some sections of wall already exist.

Meanwhile, Trump will likely goad the Democrats into giving up the somewhat reasonable position that additional wall is unnecessary for the bat-s**t crazy position of tearing down the already-existing sections of wall (see Beto and Gillibrand, likely soon to be followed by all the presidential candidate lemmings on the Dem side).

Browndog म्हणाले...

rcocean said...

If Hillary had been elected, the Kagan SCOTUS would've declared the immigration laws unconstitutional and repealed the 2nd Amendment. I'm positive of that.


If Hillary had been elected, there would be no need for SCOTUS. Challenges to her authority would never get that far.

Francisco D म्हणाले...

Although I support DJT, I cannot support his State of Emergency plan.

It is unconstitutional as clearly indicated in Sections Seven and Eight.

I do not want Democrat presidents to have that power in tandem with the support of their propaganda wing, the MSM. It would be absolute tyranny.

Yancey Ward म्हणाले...

It is quite possible that the Republican negotiators and the White House Counsel's office were fully aware of the same argument Ms. Althouse made here, and it was why the White House ultimately agreed to sign the CR with the minimized funding- it provides exactly that non-rejection of a building a barrier. In other words, the Democrats could have held firm and insisted on injecting into the CR language forbidding the building of any more wall/barriers altogether and kept firm the argument Savage is attempting to make here, but allowing for the 1-2 billion undercuts that argument right from the start.

Yancey Ward म्हणाले...

As I wrote yesterday, the best chance of stopping Trump here is probably going to be attacking the law itself as an unconstitutional delegation of power from Congress to the Executive Branch. Otherwise, they are depending, ultimately, on SCOTUS to decide that the judiciary is the forum for deciding whether or not an emergency is an emergency, and I don't think the Roberts court is going to agree to do such adjudication- they are likely going to say it is up to Congress to deal with it.

Yancey Ward म्हणाले...

And here is going to be the problem for the Democrats in challenging this- at what point is an emergency reached when foreigners are streaming over the border? Is it when it 100,000/month, 500,000, or is it 10,000? "Is there a number," is a question the plaintiffs are very likely to be asked by a judge, and they had better have an actual answer and argument for why that is the number and not some other number.

Josephbleau म्हणाले...

We have a congress of cretins, useful only for their own enrichment. If they are crying about the wall, pass a bill that makes it a crime to prevent a non citizen from crossing the border by any means. If they want the army in Afghanistan, pass a bill declaring war on them. Then override the veto. No they want no accountability and pass laws allowing the president to do their dirty work.

Josephbleau म्हणाले...

Congress has said nothing about their will to have no wall until they pass a formal resolution. All else is BS.

Bill Harshaw म्हणाले...

You say Congress didn't say "no" to Trump's wall; they just said "not now".

If a women says "not now" to a request for sex, is it okay for the requester to go ahead anyway?

If a parent says "not today" to a request by a teenager for an extended curfew, is it okay for the teenager to go ahead and stay out anyway?

effinayright म्हणाले...

Trumpit said: Where are the environmental impact studies on his JACKA$$ WALL?

*********************

I dunno. Seems to me that Trump could use as a model the environmental impact studies done in Normandy, before the invasion.

Oh wait....

Mark म्हणाले...

The only reason so many don't believe illegal immigration is an emergency is that the completely biased media outlets don't report on it

The bigger reason is the frog in the slowly-heated water. People have experienced this for so long that they are used to it and don't realize how much of an epidemic and crisis it has become.


And if they start to think it is at crisis levels, they immediately dismiss it from their minds lest they accuse themselves of being racist.

Sam L. म्हणाले...

I trust nothing printed in the NYT.

Hammond X. Gritzkofe म्हणाले...

Well it's about doggone time. Defending the national borders and minting sound currency are at the top of the list in the charter of the Feral Gummit. Not much attention been paid to either in the last several decades, by my observation.

Achilles म्हणाले...

Ann Althouse said...
Is it unconstitutional in the context of all the other things that could be called unconstitutional but that have already been declared constitutional?

That's the question to be answered in court.


The court found the right to abortion in the 4th amendment.

The court found the government had the power to condemn private property and give it to crony developers.

The court found the government had the power to force you to buy insurance from crony insurance companies.

The court just makes shit up.

At some point their garbage will no longer be tolerated.

YoungHegelian म्हणाले...

My fine legal mind** is wondering if some of the laws added by Congress in the latest Omnibus Bill (e.g. allowing localities to veto barrier building on their borders with Mexico) will pass constitutional muster. My guess, after Arizona vs United States, is that the answer is No.

** It's true. I have a law school degree that I got as the prize in a box of Cracker Jacks. It's in the drawer right next to my Cracker Jack's med. school diploma.

YoungHegelian म्हणाले...

It's going to be a real shit show if Trump wins these legal challenges. I suspect he will.

This issue deals with border control, which is under the control of the Executive branch. When the Obama administration refused to enforce immigration law, the state of Arizona asked to be able to enforce the immigration law that was on the books under its own authority. The SCOTUS, under Arizona vs United States, said No, immigration policy is the purview of the executive branch.

Guess what Congress? If the states can get told to go pound sand, so can the legislative branch. I think that the Trump administration wins the case the moment it asks the Legislative branch's counsel at what number of illegal immigrants is an "emergency level" reached? There will be hemming & hawing & finally an admission that at no number of illegal immigrants is an emergency level reached. From that point on, it's a reductio ad absurdum, & the administration will prevail.

Whatever one may think about the Trump administration's immigration policies, at least they have some policies! The Democrats & RINOs have none that they will admit to in public, which leads the public to believe that they, the supposed "moderates", actually support the same open borders that their radical confreres in the party openly support.

Gk1 म्हणाले...

YH I thought the same thing when I read excerpts from the bill that allowed Mayors nearby the border to unilaterally decide US border policy and have barriers removed. They don't get to decide that any more than they get decide who flies over their airspace. This is a sop to mouth breathing dummies who want to get rid of a barrier all together.

YoungHegelian म्हणाले...

@GK1,

...I thought the same thing when I read excerpts from the bill that allowed Mayors nearby the border to unilaterally decide US border policy and have barriers removed... This is a sop to mouth breathing dummies who want to get rid of a barrier all together.

I consider the clause another fine example of lefty lawfare.

khematite म्हणाले...

In Youngstown v. Sawyer (1952), Frankfurter argued that failure to provide authorization for a presidential action (seizing the steel mills to prevent a strike during wartime) was fully the equivalent of formally voting to deny him such power.

"It cannot be contended that the President would have had power to issue this order had Congress explicitly negated such authority in formal legislation. Congress has expressed its will to withhold this power from the President as though it had said so in so many words. The authoritatively expressed purpose of Congress to disallow such power to the President and to require him, when in his mind the occasion arose for such a seizure, to put the matter to Congress and ask for specific authority from it, could not be more decisive if it had been written into §§ 206-210 of the Labor Management Relations Act of 1947."

Chief Justice Vinson refuted that notion in his dissent, asserting that the failure to grant a power to the president was not really the equivalent of denying him that power.

Ann Althouse म्हणाले...

"You say Congress didn't say "no" to Trump's wall; they just said "not now". If a women says "not now" to a request for sex, is it okay for the requester to go ahead anyway? If a parent says "not today" to a request by a teenager for an extended curfew, is it okay for the teenager to go ahead and stay out anyway?"

Not an accurate analogy. In your analogy, there is a curfew and the kid is violating it. Let me fix it for you:

The teenager wants to stay out after 9 pm, and the household rule is that you can't stay out after a time that the parents have set, and the teenager says, I'd like to be able to stay out until 10 on Friday, do you have a rule against that? and the parent says, I'll think about it, and Friday comes, without the parents having said anything more, and the kid stays out until 10. Afterwards, the parent says, hey, I didn't give you specific permission to stay out until 10. The teenager can honestly say, I know, and I asked you but you didn't say I couldn't, and you know the rule is only that I can't stay out later than a time that you set, so since you hadn't set a time, I decided I could stay out. The parent says, but don't you think you should have continued to consult with us until you got a specific answer? And the teenager says, well, I tried to talk to you but you didn't say yes or no, and when it came right down to deciding what to do, whether to come home early or do something I thought was a good idea, I considered myself free to go by my own rule. The honest parent should say, you're right, you didn't violate any rule, and it was considerate of you to ask. I realize that if I want to exert parental authority, I need to at least respond when you ask or commit to a stronger rule so the default really is curfew. I guess I'm unwilling to step up or to let go and I can see how that's a problem.

Phil 314 म्हणाले...


Blogger Browndog said...
“With this declaration, Trump has kept his promise to "build the wall" by doing everything possible within his power to get it done.”

Empty promises and little power.

But he’s got his tweets!

And the damn thing is I generally support the wall but he just ef’ed it up so badly. So now he wants to use a club that if successful will be used in the future by a Democratic President to shut down the coal industry because of our climate national emergency. And all because he doesn’t have the ability to think strategically.

YoungHegelian म्हणाले...

@Phil,

So now he wants to use a club that if successful will be used in the future by a Democratic President to shut down the coal industry because of our climate national emergency.

If Trump wins, it'll be because the legal precedent for Executive Action is already there. Do you think that any Democratic president who'd do such a thing is really going to be concerned about such legal niceties?

Also, Trump is declaring a national emergency in a question of border security, which is most definitely under Executive purview. A shutdown of the coal industry is much more of an internal affair, and I would think would demand a higher bar from the SCOTUS in order to pass muster.

After the Libyan debacle, which the Obama admin undertook with nary a peep, Congress is in poor form to try and reclaim its proper constitutional prerogatives.

Gospace म्हणाले...

Ray - SoCal said...

12. Whatever you call that is going on in Virginia. It removes the use of Racism Rhetoric against Trump.


Klown Kar Karma works for me. And it has the same initials as the Democrat party terrorist brigade, reminding people of the association between the two.

Michael K म्हणाले...

Guess what Congress? If the states can get told to go pound sand, so can the legislative branch. I think that the Trump administration wins the case the moment it asks the Legislative branch's counsel at what number of illegal immigrants is an "emergency level" reached?

Good point.

Michael K म्हणाले...

I do not want Democrat presidents to have that power in tandem with the support of their propaganda wing, the MSM. It would be absolute tyranny.

They have now. Gun control was their issue until it backfired. The DACA population is an example.

It will be interesting to watch the blow back on AOC on the Amazon thing,.

Francisco D म्हणाले...

Welcome back, Mike.

Hope all is OK.

YoungHegelian म्हणाले...

For what it's worth, I'm posting an article by David French from NR on why Trump's Emergency Order gambit will not work.

Make of it what you will. Not agreeing, just presenting the other side.

Drago म्हणाले...

Trumpit: "Where are the environmental impact studies on his JACKA$$ WALL?"

They were mulched up along with the estimated 140,000 to 328,000 birds each year in North America in all the wind farm turbines.

gbarto म्हणाले...

Hey Skipper,
Don't you think anybody who was a practicing physician in their home country should be allowed to practice here? Think what we could do to improve access to medical care!

rcocean म्हणाले...

Thanks for presenting the "other side"

I wouldn't know about it, unless I'd read the NYT, WaPo, LA TImes, Newsweek, Time, Atlantic, New Yorker, Slate, New Republic, Daily Beast, Boston Globe, and pretty much 90% of all Newspapers and Magazines.

Or watched CNN/MSNBC/ABC/PBS/CBS or listened to NPR.

walter म्हणाले...

Just caught Acosta spewing at Trump in the Rose Garden presser.
At one point in his litany of stats, he mentions "undocumented criminals", the quickly rephrases.

Bruce Hayden म्हणाले...

Trumpit: "Where are the environmental impact studies on his JACKA$$ WALL?"

Actually, your buddy, Trump, is legally able to waive the EIS during the state of an emergency. And in other time critical situations, such as natural disasters, etc imagine, for a moment that we are invaded. Yes, kinda like now. But instead of building a wall, the military decides to deploy M-1A Abrahams tanks, that ear up everything with their trades. Or they are ordered driven through “wetlands”. Maybe driving through a berm causes a wetland. And, then, there is a possibility that their main gun might start a fire somewhere. And a Hawaiian judge somewhere says “can’t do, no EIS”. “You have to wait a couple years while the EIS is prepared and litigated”. Maybe a decade or so.

My memory is that GW Bush waived such procedural niceties in response to natural disasters, and Obama at least once did not, which meant that rebuilding took years longer.

Ingachuck'stoothlessARM म्हणाले...

at ~7 million/minute, isnt that about 3.5 hrs of govt spending?

Bob Loblaw म्हणाले...

I would love nothing more than to see Congress jealously guard its constitutional prerogatives. Fobbing its responsibilities onto the bureaucracy has been good for individual members but bad for the institution and even worse for the nation.

FIDO म्हणाले...

Please note:

Last year, before election, we had MULTIPLE large caravans of raucous, sometimes violent, certainly border violating mostly military aged young men who were traversing multiple nations with the express purpose of shoving themselves into America without consent.

The press discussed this endlessly until it upset Democrat election prospects and started giving Trump a bump.

If we have large violent raucous bands of military young men coming to illegally violate us without consent, how would most people characterize this?

I characterize this as a military emergency.

The Gipper Lives म्हणाले...

The argument against declaring a National Emergency because a Democrat might do it is pure bullshit.

The last Democrat president illegally

* declared a One-Man Arms Treaty with Iran
* decreed another One-Man Climate Treaty (by calling them by another name)
* Unilaterally decided to suspend Immigration Law ("Deferred Action") and write his own.
* appropriated $7 billion for insurance companies
* used the IRS as a political weapon
* allowed his Sec/State to run a worldwide Bribery Empire out of the State Dept.
* perpetrated a criminal and seditious coup attempt on voters using the entire government as a weaponized arm of the DNC.

But we're supposed to worry they might misuse Emergency Declarations, too? Democrat, please.

By contrast, President Trump is using his lawful powers properly to defend the nation--indeed, the very concept of nationhood.

Nor is it against the will of Congress as expressed in the Secure Fence Act of 2006.

ps: What if the President unilaterally suspended laws like Hussein did? He should withhold funding from Planned Parenthood and call it "Deferred Action on Childhood Arrivals".

Martin म्हणाले...

Savage is playing a nasty game.

Had Congress decided against funding, it would have written a prohibition into law.

What Congress did was not decide to fund, which is a different thing.

Now, I am not convinced that what Trump did in declaring an emergency was right or proper, but Savage is just another media weasel.

Tina Trent म्हणाले...

Brennan Society is a radical left-wing propaganda outfit started with a grant from still Society and now, like so many other such outfits embedded in academia, still sustained by Soros but also living large off forced taxpayer support.

Always follow the money.

Tina Trent म्हणाले...

Sorry -- The Open Society. Cheap Amazon tablet changes words after not changing them. My eyesight isn't great.

Tinderbox म्हणाले...

The fact that these people see no threat in unregulated immigration from the third world speaks mostly to their own white privilege and ability to buy into neighborhoods insulated from it.