Trump’s ‘National Emergency’ And The Law
President Trump's impending decision to declare a national emergency to get funding for his border wall will quickly face serious legal challenges. It may be more vulnerable than the White House suspects.
As it did in January when it was first reported as a possibility, the President’s decision to declare a national emergency as a scheme to get funding for his border wall is raising serious legal issues that are sure to lead to court challenges almost as soon as the ink is dry on the declaration the President will sign later this morning:
WASHINGTON — The White House’s announcement Thursday that President Trump would claim emergency powers to build his border wall without congressional approval was a way out of the political crisis he created over shutting down the government. But while the move means the country will avoid another protracted shutdown, legal specialists warned that the long-term costs to American democracy could be steep.
As a matter of political reality, such a declaration permits Mr. Trump to keep the government open without losing face with his core supporters by surrendering to congressional Democrats on his signature issue. As a matter of legal reality, the proposal is likely to be bogged down in a court challenge, leaving any actual construction work based on emergency powers spending an uncertain and, at best, distant prospect.
But no matter what else happens, Mr. Trump’s willingness to invoke emergency powers to circumvent Congress is likely to go down as an extraordinary violation of constitutional norms — setting a precedent that future presidents of both parties may emulate to unilaterally achieve their own policy goals.
“This is a real institutional threat to the separation of powers to use emergency powers to enable the president to bypass Congress to build a wall on his own initiative that our elected representatives have chosen not to fund,” said William C. Banks, a Syracuse University law professor who is the co-author of a 1994 book about tensions between the executive and legislative branches over security and spending, “National Security Law and the Power of the Purse.”
“It sets a precedent that a president can, without regard to an actual existence of an emergency, use this tool to evade the normal democratic process and fund projects on his own,” he added.
Emergency powers statutes are laws enacted by Congress that permit the president, upon declaring the existence of a national crisis, to take steps that would normally be forbidden by law. The idea is to allow the executive branch to move quickly in exigent circumstances.
While presidents in the modern era have declared dozens of emergencies to address various problems, none has been remotely as disputed as the one Mr. Trump is contemplating. Mr. Banks said he had found no examples of a lawsuit in which someone tried to challenge the factual basis for a president’s determination that an emergency existed, leaving scant guideposts for what courts might do with any legal challenge.
More from Politico:
President Donald Trump’s decision to declare a national emergency in order to access funds Congress refused to appropriate for his border wall is set to unleash a furious legal war that could bog down the project for months or years.
Immigrant rights advocates, property rights activists, environmentalists, Democratic lawmakers and state officials are all loudly signaling plans for a hail of legal writs aimed at blocking the president from what they have denounced as an unconstitutional end-run around the usual budget process.
While judges have sometimes moved to block spending seen as unauthorized by Congress, historically it has been almost unthinkable for judges to interfere with or second-guess a president’s declaration of a military or national security emergency.
However, legal experts said Trump’s history of erratic and inflammatory statements, his frequent rhetorical disconnects with senior officials in his administration and his tendency to see crises that others view as completely contrived mean that challengers stand a strong chance of finding a judge willing to throw a monkey wrench into the president’s plans.
“Normally, any other time, you’d say it’s a no-brainer that the president wins,” at least with respect to the decision to declare an emergency, said Bobby Chesney, a University of Texas law professor. “But with this particular president, no bets are safe in assuming the courts will completely defer to him … Presidents traditionally get tremendous deference, but Trump is not going to get the same level of deference.”
Chesney noted that when U.S. intelligence chiefs testified in the Senate late last month about global threats to the country, there was only brief discussion of migration and no mention of a crisis related to the so-called caravans at the southern border.
“That really strips away the core rationale …. and creates much more chance than normal that even at that initial step there’s a non-negligible chance that [Trump’s plan] could be rejected,” Chesney said.
Some have compared the fusillade of litigation the administration is about to face to the one that developed against Trump’s travel-ban policy in 2017. The administration ultimately won on that issue in a 5-4 ruling at the Supreme Court, but only after the policy was significantly watered down and repeatedly blocked for months in what sometimes seemed like a legal war of attrition.
However, one contrast with the travel ban fight is the slow-motion nature of Trump’s emergency declaration on the border. The weeks of public threats have clearly given opponents of the border wall time to sharpen their legal arguments and their public rhetoric, while also giving the Justice Department more time to prepare for the inevitable onslaught of litigation.
Moments after Senate Majority Leader Mitch McConnell (R-Ky.) confirmed Thursday that Trump planned to declare an emergency, journalists were flooded with news releases denouncing the move and vowing a legal response.
“Raiding pots of federal money is unconstitutional and irresponsible,” Sen. Dianne Feinstein (D-Calif.) said. “The Constitution says Congress decides how to spend money, not the president. For the president to divert this money to unauthorized wall spending is unconstitutional and will be immediately challenged in court.”
California Attorney General Xavier Becerra, who has filed dozens of suits against Trump administration policy moves, added: “There is no national emergency. If Trump oversteps his authority and abandons negotiations with Congress by declaring a fabricated national emergency, we won’t only call his bluff, we will do what we must to hold him accountable. No one is above the law.”
Many of the critics painted Trump’s planned action as both grave and not entirely unexpected.
“This is about more than a political tactic. It’s an attack on our democracy by an autocrat,” said Frank Sharry of the immigrant-advocacy group America’s Voice. “Another moment of truth is upon us. This is not normal. Let us hope that Congress and the courts rally to defend what truly makes America great — a system of checks and balances that distributes power to prevent despotism.”
(…)
Trump’s plan is expected to come under legal attack from various quarters, including state and local governments, environmentalists, property owners along the border, would-be recipients of funds that would be diverted by Trump’s move and, potentially, by the House of Representatives.
Legal experts said affected property owners would have the clearest legal standing, but just what property is in most jeopardy of seizure by eminent domain may be unclear at the outset if the administration is vague about its construction plans.
On the other hand, the House may be well positioned to file suit almost immediately on a theory that it is being unconstitutionally bypassed. Lawyers say the House’s legal authority to sue on that basis is shakier than that of a private landowner who has his or her land seized. However, in 2015 a federal judge ruled than the then-GOP-led House had legal standing to sue over purportedly unauthorized cost-sharing payments to insurance companies under Obamacare.
Many of those objections were addressed back in January by Yale Law Professor Bruce Ackerman who argued in a New York Times Op-Ed that the President does not have the legal authority to declare a national emergency to get his wall built:
Begin with the basics. From the founding onward, the American constitutional tradition has profoundly opposed the president’s use of the military to enforce domestic law. A key provision, rooted in an 1878 statute and added to the law in 1956, declares that whoever “willfully uses any part of the Army or the Air Force” to execute a law domestically “shall be fined under this title or imprisoned not more than two years” — except when “expressly authorized by the Constitution or Act of Congress.”
Another provision, grounded in a statute from 1807 and added to the law in 1981, requires the secretary of defense to “ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)” must “not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”
In response to the Hurricane Katrina disaster in New Orleans, Congress created an express exception to the rules, and authorized the military to play a backup role in “major public emergencies.” But in 2008 Congress and President Bush repealed this sweeping exception. Is President Trump aware of this express repudiation of the power which he is threatening to invoke?
The statute books do contain a series of carefully crafted exceptions to the general rule. Most relevantly, Congress has granted the Coast Guard broad powers to enforce the law within the domestic waters of the United States. But there is no similar provision granting the other military services a comparable power to “search, seize and arrest” along the Mexican border. Given Congress’s decision of 2008, this silence speaks louder than words. Similarly, the current military appropriations bill fails to exempt military professionals from criminal punishment for violating the law in their use of available funds.
It is, I suppose, possible to imagine a situation in which the president might take advantage of the most recent exception, enacted in 2011, which authorized the military detention of suspected terrorists associated with Al Qaeda or the Taliban. But despite President Trump’s unsupported claims about “terrorists” trying to cross the border, it is an unconscionable stretch to use this proviso to support using the military for operations against the desperate refugees from Central America seeking asylum in our country.
It is even less plausible for the president to suspend these restrictions under the National Emergencies Act of 1976. From the Great Depression through the Cold War, presidents systematically abused emergency powers granted them by Congress in some 470 statutes, culminating in the Watergate fiasco. In response, the first section of the 1976 act terminated all existing emergencies and created a framework of checks and balances on the president’s arbitrary will.
In addition to Ackerman’s argument, there is Supreme Court precedent in favor of the proposition that a move such as this on the part of the President would violate the Constitution. In 1952, while the United States was involved in the Korean War, steelworkers across the nation went on strike over wages and working conditions. The strike was so extensive that it essentially brought steel production in the country to a halt. In response, President Truman, purportedly acting in accordance with his emergency powers as President and Commander in Chief, seized control of the nation’s steel mills so that they could continue operating. As justification for his actions, the President cited the ongoing war in Korea and the fact that any halt in steel production would have an adverse impact on the ability of defense contractors to fulfill the orders placed by the Pentagon to keep troops in Korea supplied with weapons, ammunition, and other material.
Not surprisingly, the steel industry sued and, after an unusual expedited hearing, the Supreme Court ruled against the President and nullified his emergency orders directed toward the steel industry. In its decision in Youngstown Steel & Tube Co. v. Sawyer 343 U.S. 579 (1952) the Court ruled that Truman had acted improperly and that he had neither the Constitutional authority nor the authorization from Congress to take the action that he did even if one assumes that the government was correct about the impact that the strike and subsequent closure of the steel mills would have on the ability of defense contractors to fulfill their obligations and, ultimately, on the war effort in Korea. While the reasoning supporting the majority opinion written by Justice Hugo Black was somewhat confused by the fact that there were no less than five concurring opinions from Justices Frankfurter, Douglas, Jackson, Burton, and Clark. In any case, the general tenor of the Court’s ruling was that the President does not possess the authority to take an end-run around Congress and the Constitution under the banner of declaring a “national emergency.”
In addition to these arguments and the Youngstown Steel precedent, there are also other arguments against the idea of allowing a President to get away with using emergency powers in a situation like this. As I noted earlier today, there is simply no evidence to support the idea that there is a national emergency at the southern border. Without that evidence, the declaration itself becomes questionable, to say the least. Additionally, if there truly was an emergency at the border, then the question becomes why the Trump Administration has waited so long to declare one. An emergency, after all, implies the existence of an immediate and obvious threat that has to be dealt with outside of normal Constitutional and legal processes it. Instead of an emergency, what we have here is a President who lost a legislative battle over his wall who is going to turn around any use emergency powers to get what he could not get from Congress or, to put it another way, the emergency is a President seeking to save himself from being accused of having caved on a campaign promise by his supporters and by the likes of Ann Coulter, Sean Hannity, and Rush Limbaugh.
If that becomes an acceptable way to use emergency powers, then the prospects for the future are something that ought to cause Republicans to pause to consider the consequences of backing the President here. As Nancy Pelosi said yesterday, if Trump can use emergency powers to pay for his border wall because a Democratic House won’t give it to him then what’s to stop a Democratic President from using the same powers to enact gun control laws in response to the “crisis” of gun violence or to enact part of the Paris Accords in response to the “crisis” of climate change. If a President can simply declare a national emergency every time they lose a battle with Congress, then the entire Constitution becomes meaningless and we will have entered an era of unlimited Executive Branch rule. This is precisely what the Founders wanted to avoid when they set up the checks and balances that exist in the Constitution. As Dave Schuler points out at The Glittering Eye this morning, we’ve already seen Congress cede too much discretion to the Executive Branch to the point where the Presidency has assumed far more power than it was intended to have. Donald Trump’s actions, if allowed to go forward, would essentially eliminate what’s left of the checks and balances restraining Presidents.
Declaration of a “national emergency” isn’t the only thing the President has threatened to do with regard to his border wall. He has also suggested recently that he might try to use money that Congress has allocated to the Defense Department to build the wall, even though Congress has not explicitly organized such an action. As with the idea of a “national emergency,” this action would seem to directly violate long-standing Federal laws regarding the Federal budget such as the Federal Budget And Accounting Act and the Congressional Budget And Impoundment Act of 1974. While this may not matter to the President, it is likely to matter to the courts and to Congress. As with all things related to Trump, it’s difficult to tell if this is a serious proposal or if he is merely trolling the media and Congress with another controversial proposal that will come to nothing. If he’s even the slightest bit serious about attempting to use a “national emergency” to accomplish something that can’t presently be done through normal channels then it will be yet another example of how he has nothing but contempt for the Rule of Law and political norms. Taking yet another extreme step would just be par for the course on his part.
Republicans are going to stand-by, fecklessly, while a Russian asset wipes his fat orange ass with our Constitution.
Putin wins.
Dang.
As I mentioned on the other thread, I highly doubt Trump expects to actually get away with this. This is him setting up Congress and the Courts for Wall’s inevitable failure to materialize. It will be those damn Courts preventing him from protecting America, see? It’s the stupid lib filing challenging and whining about separation of powers like that matters when we’re being invaded!!!11! It will be the GOP in Congress for not backing him up, getting him the deal he wanted and basically not owning the libs like Trump would CLEARLY be doing if it wasn’t for those damn Courts!!!
Anyone who’s ever spent any time with a narcissist or abuser can see where we are in the cycle. We’ve already gone through the lies, the gas-lighting, and the escalation when challenged bits. Now we’re in the confrontation stage, where the visible damage happens. This is when the abuser lashes out, verbally or physically and all pretense of being decent has vanished. It happens when the abuser is feeling pressured or cornered and just strikes without care. This is when the cops usually get called because it gets loud and property damage becomes an issue. Trump’s planning on giving America and the Constitution a black eye because he didn’t get his way even though Congress gave him something.
After confrontation is reconciliation and soothing, the last part that starts the cycle again. Oh, don’t you know he tried to give you what you want America? The shutdown, the national emergency, the trade wars, all those were to *help* you! Don’t you want him to help you, make you great again? Those nasty libs, they’re just making trouble – I mean, they forced him to declare a national emergency to get Wall! If you just let him have Wall, everything will be better again. We’ll go back to normal and forget this whole silly thing. It’s not like he’d declare a second emergency to get his way again, right? That’s silly talk!
@Teve:
Wow. I wish I could see my Trump-loving parents’ faces if/when they read or heard that from her. They worship Coulter unreservedly as well as Trump. I wonder where their loyalty will fall/ I wonder if this will cause any questions in their mind. But the modern-day Republican Trump supporter seems to have taken cognitive dissonance to a new level, so maybe they will still worship both of them.
@KM: I don’t have anything useful to add except thank you for a great summary and identification. You’re exactly right.
This, from Matt Latimer, former speechwriter of Pres GWB
Trump’s National Emergency Is Great News for Future President Alexandria Ocasio-Cortez
The cowardly Republicans are just betting on the courts to save them from Trump.
Trump doesn’t really give a shit, because he just has to impress the fools that he’s fighting for them.
the rest of us should all be happy that this is wasting a whole bunch of time that could otherwise be used to generate a pretext for invading Iran.
Where is the Tea Party when you need them…
Isn’t this “Taxation without Representation”?
Where is the mob waving their Gadsden flags?
I’m listening to Trump speaking… what a rambling speech.
He’s blaming everyone for everything, except for him, now.
@Liberal Capitalist:
So what else is new?
Trump says that “some of the generals” at the DOD feel that the border “emergency” warrants Trump pulling the funds from the military.
No names given for any of these generals, of course.
@Blue Galangal:
You know your parents and I don’t–that said, I think most Trumpists will sooner throw Coulter under the bus than Trump. The question I have is how Coulter keeps her market share. She’s long carved out a niche for herself as a right-winger willing to criticize Republicans for not being right-wing enough. She’s the one who claimed in 2008 that she’d donate money to Hillary Clinton (whom she presumed would be the Democratic nominee) if the GOP nominated John McCain. (I don’t think she ever followed through, but she probably made the excuse that Obama being the Democratic nominee changed the equation.) While she did write a book called In Trump We Trust, she was from the beginning pretty candid about the fact that her support for him was transactional. She said basically that he was an idiot, but at least he was a useful one. I think that’s actually how a lot of the white nationalists viewed him, and Coulter is one of the Fox commentators who has inched closest to the WN border; she is rivaled only by Tucker Carlson and Lou Dobbs. It’s a niche that’s more ideological and less worshipful than the standard MAGA hat-wearers: they’re drawn to Trump because of the racism, and they’re willing to dismiss him when he fails on that front, in their eyes. But they’re also working for a network that is effectively state propaganda, and it’s not clear how far they can take this racist purity-troll shtick and maintain their audience.
This is hilarious:
http://www.thebulwark.com/the-president-is-hallucinating-and-i-think-we-should-be-concerned/
Dennison responding to a question from Peter Alexander re the Emergency Declaration:
Gee…I wonder how that’s going to go over in court?
I don’t know if any of you watched this performance in the Rose Garden…but the 25th Amendment is absolutely warranted.
This guy is way off the rails.
Looney tunes.
Obama told him that he was
I guarantee you that did not happen.
@Daryl and his brother Darryl:
the 4 hardcore conservatards will side with Trump, and Roberts, who actually seems to care a little bit about the long-term reputation of his court, will side with the four liberals and deny him.
The real hardcore Trumpkins are hoping Trump doesn’t sign this, even though he said he would. And if he does sign it, it’s all McConnell’s fault.
@CSK: My mom, who studied psychology in college and whose father was a psychiatrist who treated the kinds of people who thought they were Napoleon, has wondered for a while if Trump is literally hallucinating–she’s noted in particular the way he reports phone conversations that never happened.
The problem is, if this were true I’m not sure there’d be any way to tell, since he’s such a pathological liar we can’t take anything he says at face value. If he said he was being visited by little green men, my first assumption would still be that he’s bullshitting us, not that he’s actually seeing things.
Jim wright:
Erin Burnett made a great point last night. This isn’t going to make it through court for years. Going into 2020, Trump is going to be saying “I’m still fighting for the wall. I’m fighting for you.”
He won’t have a deliverable to be held accountable over.
(That this will be fought in court also indicates we won’t have to worry about the next Democratic president declaring a national emergency over guns or climate change, so…)
@Kylopod:
Well, he just now whined that he’ll probably never get the Nobel Prize, and that Abe wrote “a beautiful letter” nominating him.
He might even believe that.
But bear in mind, he touted lying as a good business practice in The Art of the Deal.
There you have it-the GOP is done with the Constitution.
@CSK:
Which he didn’t write one word of–and that in itself is ironic.
A year ago Trump could have had 25 billion dollars for the wall. bulldozers could be rolling, big panels could be hoisted in place in front of television cameras, Fox news could be hosting celebrations.
A year of Trump’s negotiating later, he shut down government, got the blame for it, got nothing, then finally a deal worth a fraction of a billion dollars, which will be held up in court for years.
Has there ever been a more incompetent president?
@Kylopod:
Oddly, that’s the only thing I don’t hold against him. Very few celebrities write their own books, even those far more literate than Trump. I don’t envy his ghosts, though.
@Matt Latimer:
FTFY, Matt.
@Teve: Say what you will, Ann understands the whole issue much better than Horowitz. I didn’t expect her to turn to candor simply because her side lost, though.
@just nutha: she’s always known he was a conman scamming chumps, she just thought he was a useful one. now she’s pissed at how completely incompetent he turns out to be.
@CSK: I don’t hold the fact that it was ghostwritten against him per se, but I have to say his level of deception about it is at about the maximum level. Some years back there was a flap about Hillary not giving sufficient credit to one of her ghostwriters. But even the ghostwriter acknowledged that Hillary had contributed a significant amount to the book, and that it was basically a collaborative effort. With Art of the Deal, if Tony Schwartz is telling the truth and his recollection is accurate (and I believe he is and it is), then he wrote the entire thing, and Trump didn’t contribute one iota to it, beyond what he told Schwartz in an interview. Trump, on the other hand, insists to this day that he wrote almost the entire thing, and he calls the book one of his proudest achievements.
As you point out, ghostwriting is a dirty secret with a lot of celebrities and public figures. John F. Kennedy won a Pulitzer for a book that was very likely ghostwritten. Still, Trump must set some kind of record for the extreme level of lying and gaslighting in his attempts to take credit for–and to base his entire public image around–a work he had almost nothing to do with creating.
@Kylopod: when his schedules for several weeks leaked and on top of playing a record amount of golf, it turns out 60% of his scheduled time is “executive time”, his reaction was to go around lying for several days claiming that he worked harder than any other president in history. if we didn’t already know that he was a compulsive liar, he’d be considered mentally ill.
@Kylopod:
I heartily agree. And I also believe that Trump believes–or would like to believe–that sitting and yakking into a tape recorder constitutes 99% of the work of writing. Michael Korda had some funny things to say about that in his memoir Another Life.
@Teve:
In fairness, she herself is a con artist scamming chumps, so she should know something about that.
@Teve:
It depends what mental illness you’re talking about. Psychopathy/sociopathy (or what the DSM calls anti-social personality disorder) and narcissism are commonly classified as mental illnesses, but they’re personality disorders that don’t entail hallucinations or delusions. They’re about an inability to empathize with others, a habit of viewing other people as nothing more than pawns to manipulate. The thing is, the questions about Trump’s mental fitness also revolve around whether he’s in the early stages of dementia–and there hallucinations and delusions could come into play.
@Teve: Yeah, but she seems to be admitting that the wall is a scam in itself. I’m not sure she’s intending to but the complete rejection of Horowitz’s statement carries that implication.
@James Pearce:
An injunction application won’t take years.
My understanding of the national emergency law is that congress can vote on it, after the fact, and that one branch of congress voting forces the other branch to. That is a significant check on this power, and leaves control in congresses hands.
This could be interpreted as meaning that congress has given preliminary consent on the budget issues, and that by not acting they are giving actual consent. Which would work around the issue of congressional budget allocations.
I’m not sure how a court can rule against this without destroying the ability to act in actual national emergencies.
@Gustopher: It’s SCOTUS. They can do whatever they damn well feel like. Including coming up with an opinion and saying “don’t try using this as precedent for anything.” (Bush v. Gore)