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.”

Rep. Jim Jordan (R-OH) “insisted the president couldn’t possibly have done anything wrong because, in the end, Ukraine got its money without committing to any investigations. This point of view has radical implications for America’s system of justice and overcrowded prisons, if Mr. Jordan in fact truly believes that all inmates convicted of attempted crimes are innocent of wrongdoing… Perhaps the most telling remark was offered by a Republican staff lawyer, Stephen Castor, who suggested that while the president’s behavior may have been highly irregular, ‘it’s not as outlandish as it could be.’ Here’s a tip: When ‘not as outlandish as itcould be’ is your strongest defense, it’s time to rethink your position.”
Editorial Board, New York Times

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

Others note, “I’d hate to be a Democratic member of Congress trying to convince Joe Sixpack that this is a whole new ballgame. The transcript shows Trump being Trump and Ukrainian president Volodymyr Zelensky trying to ingratiate himself with the big dog by, for instance, mentioning that he stays at Trump hotels. Trump’s conversation is typically scattershot, wandering all over the field, leaving a reasonable listener puzzled about what the takeaways are supposed to be…

“I think Joe Sixpack’s response is going to be a hearty shrug. After all that has emerged about Trump so far, his approval rating is closely tracking Obama’s approval at the same point in his presidency. To get Mr. Sixpack’s attention you are going to have to do better than this.”
Kyle Smith, National Review

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

“After adding in the ultra-millionaire’s tax and factoring in the other capital taxes Warren wants to levy — on financial transactions, on unrealized capital gains, on corporations — we’d be asking every billionaire to hand over more than two-thirds of their total wealth over a 10-year period. If the government actually managed to collect it, their fortunes would rapidly erode — and so would tax collections. The plan might be a good way to smash wealth, but it’s a terrible way to fund the nation’s health-care system…

“If Warren makes it to the White House, and tries to pass a plan, the Congressional Budget Office will eventually attach more reasonable numbers, with more defensible assumptions, sparking an even more spectacular political blowback than the one that greeted Friday’s announcement. Outside of the progressive Twitterati, there isn’t necessarily an enormous constituency for spending $20.5 trillion to herd every American into a national health insurance program; there would be even less support for spending what Warren’s plan would actually cost.”
Megan McArdle, Washington Post

On the bright side...

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