January 11, 2019

National Emergency?

Editor’s note: we’re trying something new! We know how hard it can be in this political climate to speak up and ask a question. So we’ve put together an anonymous survey where you can ask us anything and everything. We will compile the questions, and do our best to answer them thoughtfully in an upcoming blog post. Stay tuned!

“U.S. President Donald Trump threatened on Thursday to use emergency powers to bypass Congress to pay for a wall on the U.S.-Mexico border.”

Sen. Lindsey Graham (R-SC) tweeted in support, “Time for President @realDonaldTrump to use emergency powers to build Wall/Barrier. I hope it works.”

The declaration would likely be made pursuant to the National Emergencies Act, which allows the President to undertake military construction projects that are necessary to support the armed forces using funds already appropriated for the Pentagon.
Lawfare Blog

See past issues

From the Left

The left is alarmed by the idea of the President declaring a National Emergency solely to circumvent Congress.

“Of the 58 times presidents have declared emergencies since Congress reformed emergency-powers laws in 1976, none involved funding a policy goal after failing to win congressional approval… If President Trump invokes emergency powers to build a wall along the southern border, it could be a mutually face-saving way to reopen the government, but also an extraordinary violation of constitutional norms.”
New York Times

“Does the president have, as he says, ‘the absolute right’ to do this? Well, very little about presidential power is supposed to be absolute. But the [National Emergencies Act] can now be added to the list of statutes passed by Congress during its post-Watergate resurgence that were meant to rein in the presidency but have, in fact, empowered it.”
Washington Post

“The lawmakers of an earlier age… made an egregious oversight: They assumed that future presidents would use these extraordinary powers in good faith, to address genuine national emergencies. The Trump administration is a monument to their lack of foresight. In an unhappy syzygy, the areas where Congress has ceded the most power and the broadest discretion—immigration and national security—also happen to be Trump’s favorite playgrounds for both policy and politics.”
New Republic

“While the NEA provides broad authority to declare a national emergency, simply saying he thinks something is a national emergency does not provide Trump with authority to build a wall. In order to use emergency military construction authority, there must in fact exist a national emergency ‘that requires use of the armed forces.’ In other words, beyond declaring simply that a national emergency exists, the executive branch must be able to show that the emergency at issue necessitates use of the armed forces

“There is no reasonable argument that families and children seeking asylum constitute an emergency that demands a military response… Trump’s proposal is the type of unilateral action one would expect to find in an authoritarian regime. The national emergency is not at our Southern border, it sits in the White House.”
Just Security

Minority view: “Everyone calm down about that declaration of National Emergency… the ominously vast grant of emergency authority boils down to Trump’s ability to shuffle around resources the Pentagon already has… [This is] a president exercising power delegated to him by a co-equal branch of government consistent with the structure of separation of powers—and likewise subject to review in litigation by another co-equal branch of government.”
Lawfare Blog

“Rather than continuing with a debate about whether or not to build a wall, Democrats should shift the debate to different ground: they should propose spending more money to ensure a smarter, more efficient and more humane border policy. Democrats have already supported this agenda in the existing budget, but by offering to spend more for these measures they can highlight the false choice that the administration is giving voters… Good border security does not mean building a big wall.”

“The two issues with which he is most often associated, support for a balanced budget and opposition to free trade, put him at odds with both of our major political parties. An old-fashioned, soft-spoken Southerner, he nevertheless held views on so-called ‘social issues’ that would be to the left of the mainstream of the Republican Party, both then and now. He was a fervent supporter of the Vietnam POW/MIA movement in the late '80s and early '90s, but he was not in any sense a hawk. Never mind 2003. Perot opposed the first war in Iraq in 1990… Perot's death should be mourned by all Americans who regret the fact that it is no longer possible to make reasoned, non-ideological arguments about questions of public import, and by the devolution of our political life into mindless partisan squabbling.”
Matthew Walther, The Week

From the Right

The right argues that declaring a national emergency is probably legal, but nevertheless opposes doing so due to worries about executive overreach.

From the Right

The right argues that declaring a national emergency is probably legal, but nevertheless opposes doing so due to worries about executive overreach.

“The idea that the current situation at the border is an emergency is not far-fetched. An estimated $64 billion in drugs are smuggled into the United States every year… In 1995, President Clinton signed an executive order declaring a ‘national emergency’ finding that [narcotics traffickers in Colombia] ‘constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States.’ The order stood long enough for President George W. Bush to extend it in 2004.”
The Federalist

Trump is “probably right that he has the legal authority, but it would set a bad precedent that conservatives who believe in the separation of powers could live to regret… If Mr. Trump did win in court, a President Elizabeth Warren might take the precedent as license to circumvent Congress whenever it is politically expedient. Rising carbon emissions or even income inequality could be declared national emergencies.”
Wall Street Journal

“This would make Trump the second president in a row willing to cut Congress out of the legislative process if it doesn’t agree to his priorities on immigration, and is a very bad idea…

“For all that, a move to build the wall unilaterally wouldn’t be nearly as brazen as the Obama-imposed amnesty for so-called Dreamers, or DACA. The Obama administration simply wrote legislation on its own authority after getting stiffed by Congress. Trump would at least be relying on congressional statute, and would ultimately have a better chance in the courts than Obama did.”

“Legalities aside, this would be a very bad practice. It’s an offense against the spirit of our system for a president to fail to get he wants from Congress — in a dispute involving a core congressional power, spending — and then turn around and exploit a tenuous reading of the law to try to get it anyway… We believe presidents have an obligation to honor the role of the respective branches of government.”
National Review

Some argue that “a court will undoubtedly stop Trump. And that’s presumably what he’s looking for… While a court works to strike down that emergency declaration, Trump can fulminate against the judiciary, the Democrats, and weak-kneed Republicans. He gets a win from his base; the government reopens; the Democrats can claim that they never caved. That’s the most cynical answer to Trump’s government shutdown predicament…

“Trump should [instead] stick to his guns… Earmarks alone cost the federal taxpayers $14.7 billion in 2018. Each Congressperson should be forced to explain why building a bridge named after them in Podunk ought to outweigh the national security interests of the United States.”
Daily Wire

Minority view: “The president’s use of his existing statutory authority to declare a national emergency is the only way out of the current stalemate… The president has gotten nowhere with the obstructionist Democrats who have blocked his relatively modest budget appropriations request… Neither the construction of effective physical border barriers nor the full reopening of the federal government should wait any longer.”
Frontpage Magazine

“NBC and MSNBC embraced Sen. Elizabeth Warren of Massachusetts in the first debate of Democratic presidential candidates Wednesday night, treating her like the star of the show. The debate led off with Warren, who had a huge popularity advantage from the start… NBC anchor Savannah Guthrie started it off sounding more like Warren’s press secretary. ‘You have many plans – free college, free child care, government health care, cancelation of student debt, new taxes, new regulations, the breakup of major corporations,’ Guthrie said, before teeing up an economy question. Guthrie even used Warren’s plan to break up tech companies as the foundation for a question for Sen. Cory Booker of New Jersey… the round-robin final comments also ended with Warren, as Maddow asked her for the ‘final, final statement.’ That let NBC bookend the entire debate with Warren and Warren.”
Dan Gainor, Fox News

President Trump should be happy. As much as Warren is articulate, obviously intelligent, and energetically supported by Democrats, she would also be far easier to defeat than Joe Biden… Considering Trump's economy, the president is well placed to defeat Warren.”
Tom Rogan, Washington Examiner

A libertarian's take

“Why did Modi pick this moment to do something so radical? Violence in Kashmir had been trending downwards for the last year, after all. The main reason, besides President Donald Trump's alarming offer to mediate a settlement, is that he wanted a distraction from India's mounting economic woes. India's GDP growth dropped from over 8 percent to 5.8 percent over the last year, and it is widely expected to dip further. Just as ominous has been the crash in consumer demand. India's usual problem has been an insufficient supply to meet its voracious appetite for vehicles, cell phones, and other similar goods. But sales figures for all consumer goods have posted a precipitous decline, slamming businesses that are dramatically scaling back investments.”
Shikha Dalmia, Reason

On the bright side...

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