February 19, 2019

Trump Declares National Emergency

Editor's note: We couldn’t be more proud of one of our teammates, Isaac Rose-Berman, who penned his first op-ed this week in USA Today: “How college students can bridge American divides: 'Study abroad' in Alabama or New York.” Please give it a read, and share far and wide!

On Friday, President Trump declared “a national emergency that would serve, in part, as the basis for authorizing an additional $6.5 billion for wall construction.” The proclamation included three sources of funding, the first two of which do not require a national emergency in order to redirect funds:

  • “$601 million from the Treasury Forfeiture Fund…
  • “$2.5 billion under the Department of Defense funds transferred for Support for Counterdrug Activities…
  • “$3.6 billion reallocated from Department of Defense [DoD] military construction projects under the President’s declaration of a national emergency.” In order to reallocate DoD funds in this manner, the law specifies that the funds must be used for projects “that are necessary to support [the] use of the armed forces” during an emergency that “requires use of the armed forces.”

Lawfare Blog, Whitehouse.gov


“California and 15 other states filed a lawsuit Monday against President Donald Trump’s emergency declaration to fund a wall on the U.S.-Mexico border.”
AP News

See past issues

From the Left

The left argues that this is an inappropriate use of the National Emergencies Act, and urges Congress to rein in the President’s executive overreach.

“President Trump’s emergency declaration for a border wall is based on an obvious falsehood: There is no emergency at the U.S.-Mexico border.”
New York Times

Meanwhile, “problems that should engage our energy are forced to the back of the queue of public attention. The normal constitutional approaches to governing — bills passed through committees, compromises reached in conferences involving both parties and both houses of Congress — are no longer respected… The real national emergency is the triviality of our politics.”
Washington Post

“Illegal immigration has declined 75 percent since 2000. The only real emergency here is the way that Trump is misusing the powers of the presidency. The solution… is for Congress to codify many of the unwritten expectations of presidential conduct and to constrain the president’s vast discretion. But that won’t happen anytime soon because Republican members of Congress have violated an important norm of their own: They are putting their loyalty to the president and their political party above their loyalty to the country and the Constitution.”
Washington Post

“Congress has yielded more and more power to the executive branch over decades. In many areas, it has reduced the legislative branch to a mere pedestrian in government, leaving real governing decisions to a kind of ‘fourth branch’ of federal agencies. For their part, presidents have thus become more and more bold in circumventing Congress. When Obama gave a State of the Union proclaiming his intention to bypass Congress after it failed to pass immigration reform, Democrats applauded loudly… Congress has been heading to hell for decades, and it is a bit late to complain about the destination.”
The Hill

Congress could readily specify certain conditions that must exist before the president can make such a declaration… magnitude (the feared incremental harms of the condition are very large, not just marginal); geographic scope (those harms should be nationwide even if the triggering condition is more localized); extraordinary (the condition should be rare, if not unprecedented); imminence (the anticipated harms should be so close in time that Congress cannot deliberate); and likely effectiveness… In the long run, this is more crucial to the vitality of our democracy than whether President Trump ultimately gets his wall.”
New York Times

Regarding the non-emergency portion of the funding, according to the director of the Project on Government Oversight’s Center for Defense Information, while “‘the Pentagon’s budget can be trimmed in places, it shouldn’t be at the expense of national security and certainly not for a border wall.’ It is anticipated that $3.5 billion will come from the military construction budget, which is intended to improve military bases, many of which are in dire need of overhaul…

“[He] is expected to tap an additional $2.5 billion from DOD’s drug interdiction operations, targeting drugs coming into the United States at official ports of entry… Cutting this part of DOD’s budget ‘will significantly undermine the capacity of the department to address that mission.’”
ThinkProgress

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 is worried about the precedent that Trump’s move sets, and is divided as to its legality.

From the Right

The right is worried about the precedent that Trump’s move sets, and is divided as to its legality.

Trump’s claim of emergency power [is not] outlandish—at least by the standards of past presidential practice… President Clinton… declared an emergency to address the 1996 Cuban military shootdown of two Brothers to the Rescue aircraft… The ‘emergency’ is still in place. But it has morphed into a navigation policy with the aim—like the one Trump invokes for the wall—of preventing (among other things) ‘a mass migration from Cuba [that] would endanger our security by posing a disturbance or threatened disturbance of the international relations of the United States’...

“A similar analysis could be done on (among others) Obama’s declared national emergencies due to the situation in Burundi in 2015 and piratical activity near Somalia, and on Bush’s declared national emergencies due to the sale of Iraqi Petroleum in 2003 or to political oppression in Zimbabwe in 2003… presidents have modified and renewed all of these declarations in the intervening years.”
Lawfare Blog

Some note that “in the last two years alone, ICE has arrested 266,000 illegal immigrants with criminal records, including those convicted of 4,000 homicides, 30,000 sex crimes and 100,000 assaults… In 2019, ICE made over 1,500 human trafficking arrests, almost all of which were for sex trafficking; 20,000 children were illegally smuggled into the United States during the month of December alone. If this isn't a crisis at our border, it's hard to know what is.”
Fox News

Others argue that “Trump is stretching the law to its limit, employing a dubious interpretation of old and ill-considered emergency power legislation to justify something it was never intended to justify… Conservatives rightly refused to accept such an idea when Obama was president, and they should not be accepting it now.”
Washington Examiner

Trump is “barely even deigning to explain why there is a particular crisis today… He claims it ‘threatens core national security interests’ yet then goes on to describe civilian challenges… Gang activity and drug-smuggling are grave problems, but they are crimes, not acts of war… While a court isn’t likely to overturn the emergency declaration itself, it is unlikely to believe the administration’s fiction that a civilian wall is true ‘military construction’ or that it is any way ‘necessary’ to support the use of the armed forces.”
National Review

Dated But Relevant: “For much of American history, the primary purpose of the armed forces was border defense, not exporting democracy or keeping the peace in Europe and Asia. I do not think that Congress can unilaterally transform a historic military mission — safeguarding the nation’s territorial integrity — into a civilian law-enforcement mission through immigration laws… Further, decisions over what ‘requires’ the armed forces and what is ‘necessary to support’ them traditionally have rested with the president and have rarely, if ever, been second-guessed by the courts.”
National Review

Regarding the non-emergency portion of the funding, “Obama signed a bill into law that gave his successor the very precise power to ‘construct ... fences ... across international boundaries of the United States’... Congress cannot claim that the president is subverting the rule of law when it gives him the precise authority he needs to accomplish his goal.”
Lawfare Blog

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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