Using A ‘National Emergency’ To Build A Border Wall Would Be Illegal

President Trump is claiming that he could use authority to declare a "national emergency" to build his wall even if Congress doesn't authorize it.

As the shutdown over Congress’s refusal to provide $5 billion in funding for President Trump’s border wall, or steel fence or whatever you might want to call it, the President is threatening to take extraordinary steps to get what he wants:

WASHINGTON — President Trump raised the possibility on Friday of declaring a national emergency to allow him to build a wall along the southwest border without congressional approval, hours after Department of Homeland Security officials requested additional support to erect temporary barriers between the United States and Mexico.

Mr. Trump’s comments followed a contentious meeting with Democratic leaders at the White House. It failed to produce a deal to end the two-week partial shutdown of the federal government, a funding lapse that began with the president’s insistence that Congress allocate $5.6 billion for the wall.

“We can call a national emergency and build it very quickly,” Mr. Trump told reporters in the Rose Garden when asked about an emergency declaration.

Asked if his claim was intended to scare Democrats into making a deal, he replied, “I never make threats.”

Under the National Emergencies Act of 1976, presidents are allowed to take unilateral action in times of crisis, provided they notify Congress, specify the circumstances that necessitated the declaration and document all uses of executive authority that are covered by the emergency.

Officials at the Homeland Security, Justice and Defense Departments have researched the issue for Mr. Trump. However, no emergency order has been drafted or approved, one official with knowledge of those plans said.

The Homeland Security Department submitted an official request for assistance from the Pentagon on Friday, a Defense Department official said. But the military has yet to determine what resources are needed and if any additional troops are required for the mission, the official said.

The moves come as the president finds himself trapped between a central campaign promise to build a wall and rising anxiety among Republicans over political damage inflicted by a shutdown that Mr. Trump has defiantly owned.

Before getting to the legal issues, the idea that there is any factual support for the idea that conditions on the southern border have reached a point where it is even appropriate to begin talking about declaring a “national emergency” is utterly absurd. As numerous reports have indicated net migration from Mexico has reversed to the point where more people have been leaving the United States to return home than have been trying to get into the United States either legally or illegally. As for the Central American caravans that Trump has complained about, those people have generally presented themselves at designated ports of entry so that they can properly make their asylum claims pursuant to both Federal law and international treaties to which the United States is a signatory. Additionally, contrary to Trump Administration claims, the majority of importation of illegal drugs occurs at either designated ports of entry or via the nation’s airports and seaports. To the extent that there is extensive drug running across the border, much of it is conducted via tunnels that would bypass any border wall this President would build. The Administration has also claimed, without evidence, that terrorists have crossed into the United States via the southern border. As Fox News Sunday host Chris Wallace established in an interview with White House Press Secretary Sarah Huckabee Sanders yesterday. In short, there is no factual basis for the declaration of a national emergency.

Not surprisingly, the possibility of Trump essentially making an end-run around Congress to get his wall built has raised serious legality issues as well as objections from Congressional Democrats, and Yale Law Professor Bruce Ackerman argues in a recent 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.

As Ackerman goes on to note, if Trump does intend to act pursuant to this 1976 law, as some have suggested since he first mentioned the possibility late last week, that would just be the beginning of the process and there’s no guarantee his actions would be upheld. Pursuant to Section Five of the act, the House of Representatives has the right to repudiate the President’s declaration of an emergency via an immediate vote that the President would have no authority to stop. The resolution would then be sent to the Senate, which would be required to hold a floor vote on the declaration of an emergency within 15 days after receiving the resolution from the House. This would mean that Senate Majority Leader Mitch McConnell would be powerless to prevent a vote on such a resolution. Approval of the resolution would require just a simple majority. As Ackerman suggests, Trump using his emergency powers to attempt to make an end run around Congress would most certainly lead many in the Senate, including many Republicans to object and this could lead to a sufficient number of defections from Republican ranks to approve the resolution and nullify the President’s attempt to make an end-run around the Constitution, the Rule of Law, and Congress.

On the legal front, 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.”

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.

 

FILED UNDER: *FEATURED, Congress, Donald Trump, Law and the Courts, Politicians, U.S. Constitution, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. gVOR08 says:

    As with everything Trump says he’ll do, I’ll worry about this when he actually takes some step to do it. Are we leaving Syria this week or not?

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  2. CSK says:

    Trump has asked the networks for airtime tomorrow night to “address the nation.” Perhaps he’s going to declare a national emergency.

    Gotta keep Ann Coulter happy.

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  3. Ben Wolf says:

    It would be nice to think that America is protected from the worst excesses of Trump’s impulses by its democratic laws and institutions. After all, Trump can do only so much without bumping up against the limits set by the Constitution and Congress and enforced by the courts. Those who see Trump as a threat to democracy comfort themselves with the belief that these limits will hold him in check.

    But will they? Unknown to most Americans, a parallel legal regime allows the president to sidestep many of the constraints that normally apply. The moment the president declares a “national emergency”—a decision that is entirely within his discretion—more than 100 special provisions become available to him. While many of these tee up reasonable responses to genuine emergencies, some appear dangerously suited to a leader bent on amassing or retaining power. For instance, the president can, with the flick of his pen, activate laws allowing him to shut down many kinds of electronic communications inside the United States or freeze Americans’ bank accounts. Other powers are available even without a declaration of emergency, including laws that allow the president to deploy troops inside the country to subdue domestic unrest.

    This edifice of extraordinary powers has historically rested on the assumption that the president will act in the country’s best interest when using them. With a handful of noteworthy exceptions, this assumption has held up. But what if a president, backed into a corner and facing electoral defeat or impeachment, were to declare an emergency for the sake of holding on to power? In that scenario, our laws and institutions might not save us from a presidential power grab. They might be what takes us down.

    The premise underlying emergency powers is simple: The government’s ordinary powers might be insufficient in a crisis, and amending the law to provide greater ones might be too slow and cumbersome. Emergency powers are meant to give the government a temporary boost until the emergency passes or there is time to change the law through normal legislative processes.

    Unlike the modern constitutions of many other countries, which specify when and how a state of emergency may be declared and which rights may be suspended, the U.S. Constitution itself includes no comprehensive separate regime for emergencies. Those few powers it does contain for dealing with certain urgent threats, it assigns to Congress, not the president. For instance, it lets Congress suspend the writ of habeas corpus—that is, allow government officials to imprison people without judicial review—“when in Cases of Rebellion or Invasion the public Safety may require it” and “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

    Nonetheless, some legal scholars believe that the Constitution gives the president inherent emergency powers by making him commander in chief of the armed forces, or by vesting in him a broad, undefined “executive Power.” At key points in American history, presidents have cited inherent constitutional powers when taking drastic actions that were not authorized—or, in some cases, were explicitly prohibited—by Congress. Notorious examples include Franklin D. Roosevelt’s internment of U.S. citizens and residents of Japanese descent during World War II and George W. Bush’s programs of warrantless wiretapping and torture after the 9/11 terrorist attacks. Abraham Lincoln conceded that his unilateral suspension of habeas corpus during the Civil War was constitutionally questionable, but defended it as necessary to preserve the Union.
    https://www.defenseone.com/threats/2018/12/what-trump-could-do-if-he-declares-state-emergency/153366/

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  4. Kathy says:

    The downside, the big downside, of a state built on the rule of law, is the twin requirements from those holding power to respect the law and to enforce it.

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  5. Stormy Dragon says:

    The fact its illegal doesn’t necessarily matter here. Trump can declare a national emergency, order the military to build the wall, and then let the government reopen, claiming he was victorious.

    In a couple weeks, it will all get shutdown by the courts, but by then his base will have completely forgotten about the shutdown, and he can spend a day or two tweeting about how much he hates the courts.

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  6. dazedandconfused says:

    I would quibble the notion that re-enforcing the borders is a domestic LE issue, I think Trump could easily dodge that bullet.

    Main point I want to run up the flag pole for the legal arguments is Ol’ Hickory’s assertion: “John Marshall has made his decision, now let him enforce it!”- paraphrased from memory…

    If Trump orders the Pentagon to deploy construction brigades down there to build a wall, bet the farm they will go and do exactly that, and no branch of LE will try to stop them. When it comes to pissing matches between Congress and a POTUS impeachment is the only action which, if successfully completed, allows the military and police to ignore a POTUS…and even then they would obey the new POTUS.

    If Trump thinks he’s scaring the Dems…why does he think that? What is Congress supposed to be afraid of? The ending of he shutdown? A net plus for all IMO. That he got his way buy playing dictator? Is that suppose to be a political “win”? Not with the middle, it won’t. I believe the D’s are privately thinking “Make our effin’ day!” at this.

    I almost miss Karl “50 +1%” Rove. At least Rove knew that winning 50% was key.

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  7. KM says:

    This is Trump trying out a tactic he’ll abuse time and time again if he can. He’s been virtually unopposed in government for two years, having control of all 3 branches. His failures and setbacks have been because he’s so damn incompetent that there’s no legal fig leaf for him to claim. It’s not a coincidence he’s doing this when the new Congress is barely a week old. If Senate Repubs go along with this, then like a toddler holding his breath, it’s going to be a default tactic.

    Mark my words, if Trump declares a national emergency and there isn’t an IMMEDIATE backlash with consquences, he’ll do it every damn time he wants something and Congress says no. He’ll manufacture an emergency each time and declare “Emergency! I’ll do want I want since I’m the Prez lol!” He’s determined to provoke a Constitutional Crisis so he can blame his opponents for his failures – to hell with what it will do the nation!

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  8. White Devil ™ says:

    Illegal you say? Well, then Ruth Buzzy Ginsberg to the rescue to strike it down! But wait, where IS ol’ Buzzy? I’m sure she’ll be back soon.

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  9. Kathy says:

    @KM:

    I agree. The Democrats should take the same line the US tried taking in the 80s in the Middle East: We don’t negotiate with terrorists.

    It’s not quite the same thing, but essentially Dennison is holding a portion of the government hostage, including the pay of hundreds of thousands of federal employees, and won’t release it until his demands are met.

    Hardball is one thing. Purposefully curtailing government services and they pay of working people is quite another.

    If he declares a phony emergency, he’ll do additional damage by tying up the courts (which have better things to do than deal with the whim of the moment), and diverting resources already allocated for other purposes. To say nothing of the damage to the Constitutional order.

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  10. Scott F. says:

    @Stormy Dragon:

    This is how I see it playing out as well. It’s re-opens the government and the downsides can be controlled.

    Short term, Trump gets to boast, so like all toddlers he’ll be mollified for awhile. As there’s no plan in place to build the wall using the military and planning for the military/government takes time, there will be no construction before the courts get involved. Any money wasted in preparation for the wall building that will never happen could come out of the military’s budget where they’re quite comfortable burning money on planning for events one hope never happen.

    On the flip side , the House then gets to immediately repudiate Trump’s claim of the emergency need for this wall specifically. In this scenario, the discussion can be all about the stupidity of the wall as policy without holding federal employees hostage and muddying the debate.

    Finally, you’d only need a few Republican Senators to get to the simple majority needed to pass the House’s repudiation. There have got to be 3 or 4 Republicans coming up for election in 2010 who could see value in distancing themselves from Trump’s foolish wall.

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  11. sam says:

    “Using A ‘National Emergency’ To Build A Border Wall Would Be Illegal”

    Not that there’s anything wrong with that.

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  12. rachel says:

    Wait…
    Is the current big idea that Trump could declare a national emergency and then DHS and DOD could be tasked with building the wall?

    During a government shutdown?

    While they are still not being paid?

    Um…

    Is that right?

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  13. CSK says:

    Trump’s bff Hannity says Trump will announce a national emergency tomorrow.

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  14. Kathy says:

    According to CNN there are 31 active national emergencies, some dating to the Carter era.

    If you click on the link, though, you’ll notice almost all of them are foreign policy matters, most involve sanctions, and none seem to involve either military personnel deployed within the US or misappropriation of funds.

    So this is just more of Dennison abusing his power, showing off his contempt for the rule of law, and blundering into yet another legal battle he’s bound to lose. I bet he hasn’t even called McConnell to give him a heads up and/or ask for his support.

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  15. Just nutha ignint cracker says:

    @Stormy Dragon: That’s too workable a solution for Trump to go with. And Ann would probably see through it in a cocaine heartbeat.

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  16. An Interested Party says:

    Is President Trump aware of this express repudiation of the power which he is threatening to invoke?

    BWHAHAHAHAHAHAHAHAHAHAHAHAHA!!!!! Nothing like a little humor to bring levity to the situation…

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  17. mattbernius says:

    Not sure why @Ben Wolf is getting down voted on this one. The analysis from the link is spot on and backed up by others at the Atlantic and Lawfare:

    https://www.lawfareblog.com/can-president-trump-fund-wall-declaring-national-emergency

    https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/

    The powers granted under the act are definitely wide reaching and flexible. Challenging this will be difficult.

    It’s a reminder of how much of our governing structure had been based on norms rather than well crafted checks and balances.

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  18. OzarkHillbilly says:

    @Ben Wolf: So…. You can no longer speak for yourself?

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  19. OzarkHillbilly says:

    @mattbernius: Because just because a thing has never been struck down in a court of law doesn’t make it inviolate?

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  20. mattBernius says:

    @OzarkHillbilly:
    As with anything to do with the courts, you need to look at precedent. As @Kathy notes, we are currently operating under 31 active emergencies. The reality is that the law has provided presidents with broad powers that have to this point been largely upheld.

    The Lawfare article in particular shows how difficult this is to fight. If they go forward with this there are limits and things can be slowed down by the courts so nothing substantive may happen before 2020. But as with the immigration ban, we keep seeing that in the end, the courts typically defer to the executive branch.

    I am not saying it’s impossible. However it will be an uphill battle and it’s a great example of an ill conceived and not well understood law that provides really broad powers.

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  21. Michael Reynolds says:

    Way OT, but I could swear I just listened to a radio ad that involved John Boehner holding conferences on making money from legal weed. Was that real? I just don’t know any more.

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  22. Mister Bluster says:

    @Michael Reynolds:..John Boehner holding conferences on making money from legal weed.

    Where There’s Smoke, There’s Boehner
    The former speaker’s cannabis pitch symbolizes how low too many of our craven, so-called public servants are willing to stoop for an almighty buck.
    …not content with the size of his bankroll, in April, a press release revealed that Boehner was joining the advisory board of Acreage Holdings, described by Bloomberg News as “a company that cultivates, processes and dispenses cannabis in 11 U.S. states.” Even though nine years ago, he said that he was “unalterably opposed” to legalizing pot, Boehner told Bloomberg, “Over the last 10 or 15 years, the American people’s attitudes have changed dramatically. I find myself in that same position.”

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  23. Timothy Watson says:

    @Mister Bluster: Slightly OT to the OT:
    Does anyone know who is responsible for the latest “Reefer Madness” media blitz in the conservative media? It’s nice to have something that’s not Trump related to laugh about, but the sudden outrage about “marijuana addiction” is just screaming concerted effort.

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  24. OzarkHillbilly says:

    @Stormy Dragon:

    The fact its illegal doesn’t necessarily matter here. Trump can declare a national emergency, order the military to build the wall, and then let the government reopen, claiming he was victorious.

    One minor flaw in that scenario. He can’t spend any money that hasn’t been appropriated. You are assuming a DEM surrender to an easily provable falsehood. (there is no emergency)

    Why would the DEMs do that? Where is the upside for Nancy and Chuck? For that matter where is the upside for Mitch? I just don’t see becoming increasingly irrelevant as much of an inducement to going along.

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  25. OzarkHillbilly says:

    @mattBernius: And as she notes:

    If you click on the link, though, you’ll notice almost all of them are foreign policy matters, most involve sanctions, and none seem to involve either military personnel deployed within the US or misappropriation of funds.

    Some real constitutional obstructions lie in trump’s path. We still don’t have Kings in this country. Maybe somebody should tell trump.

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  26. mattbernius says:

    @OzarkHillbilly:
    All that means is it’s untested, not necessarily illegal. Which means courts — provided someone can be found to have standing to sue — will have to look to precedent. And the reality remains that is, in general, on the side of the president in matters of “national security”.

    We still don’t have Kings in this country.

    Something that a lot of us (Doug very publicly) have been concerned about for year – regardless of who is in office – is the rise of the imperial presidency. While we say we don’t have kings, there are a lot of laws that are so loosely written that they afford major powers to the executive branch.

    The more you learn about this, the more you see that “norms” have been as much the reason we don’t have kings as any law. And the reason many of us have wanted to see power taken away from the executive branch is the concern that one day someone without respect for norms would take the office.

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  27. Kathy says:

    @mattbernius:

    A lot depends on how things are litigated, and who opposes El Dennison.

    The facts don’t support Trump at all. The only emergency is that he’s losing popularity with his base and Republican voters. I cannot see any court deferring to the executive branch on that basis.

    Then there’s the matter of what Congress will do. I can say confidently the House will be opposed, but I can’t say the same about the Senate. I don’t suppose most Senators want their power usurped, but most also don’t want to lose their job in a primary election, either.

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  28. jpe788 says:

    Ackerman’s column was a hot mess. The statute that enables construction when an emergency is declared says that it can be done, notwithstanding any law to the contrary. So we have a statute that permits the construction that can only be superseded by specific reference to the statute; the sort of general prohibition Ackerman points to doesn’t do it.

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  29. MarkedMan says:

    @Timothy Watson:

    Does anyone know who is responsible for the latest “Reefer Madness” media blitz in the conservative media?

    Just speculation but I suspect it is one of the hobbyist billionaires who has given marching orders to their pet think tanks, and the brains for hire have suddenly started churning out position papers on demand.

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  30. MarkedMan says:

    Tangential, but still germane: Ann Coulter is again slamming Trump. It’s not important what she says (it never is) but rather the fact that she seems to have decided that she has more to gain now by bashing Trump rather than supporting him.

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  31. KM says:

    As seen on Twitter: What’s to stop a future Dem President from declaring climate change to be “national emergency” to bypass a recalcitrant Congress, divert money from it’s intend source and force the military to engage in a green agenda? After all, climate change is a threat to the lives and livelihoods of every American and is an imminent threat to our national security on several established fronts (some data provided by the military itself!). Trump’s setting a precedent the Repubs are going to hate in the next few years…..

    Most of the past and current emergencies were foreign-based for a *reason*: engaging that kind of power on Americans is bound to piss us off. Depending on your politics in the given matter, it’s either cheating-for-a-good-cause or blatantly-cheating-to-subvert-the-Constitution but everyone agrees it’s playing with fire. Once the usual Trump-blows-up-norms-now-this-is-how-it-is sets up the President to declare a “national emergency” anytime Congress gives them shit, we’re going to vastly regret letting this one slide.

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  32. Teve says:

    @MarkedMan: that is an interesting development.

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  33. Daryl and his brother Darryl says:

    @jpe788:

    The statute that enables construction when an emergency is declared

    This doesn’t matter one little bit.
    For the POTUS to invoke an emergency, with the express purpose of circumventing the Legislative, which has specifically refused to take action, is an obvious abuse of power. It totally negates their constitutional role, won’t stand in the courts, and is grounds for immediate impeachment.
    If you don’t like America, move to Russia.

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  34. mattbernius says:

    @Kathy:

    The facts don’t support Trump at all. The only emergency is that he’s losing popularity with his base and Republican voters.

    The sad reality is the construction of the 1976 act really doesn’t really care about facts:

    From Lawfare:

    The NEA makes no attempt to dictate conditions for when this can be done. It’s all about process, transparency and (easily-overcome) sunset rules. Thus, if President Trump wishes to state that the border is in a state of disarray or exposure such that it constitutes a national emergency under the NEA, he is pretty much free to do so.

    From the Atlantic:

    Under this law, the president still has complete discretion to issue an emergency declaration—but he must specify in the declaration which powers he intends to use, issue public updates if he decides to invoke additional powers, and report to Congress on the government’s emergency-related expenditures every six months.

    Since the act provides no description of an Emergency — rather relying on norms — the question as to whether or not we are in a factual emergency really doesn’t matter.

    I cannot see any court deferring to the executive branch on that basis.

    I think you have far too much faith in the courts. To go against, en mass, would be the literal definition of Judicial Activism based on the construction of the law and existing precedence.

    I think some courts — as with Immigration — will delay this from taking place (provided again someone can be found with the standing to bring a case). But I have yet to see anything yet that convinces me that the executive branch doesn’t win out in the end. That end, if a suit happens, probably won’t be until after 2020 (unless this gets expedited to the Supreme Court).

    Just to be clear, I don’t support this action. At all. But it serves as yet another important reminder that our faith in norms to curve the growing power of the executive branch is misplaced.

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  35. Daryl and his brother Darryl says:

    Serious question:
    Has a President ever gone on Nat’l TV with the express purpose of frightening people who are not otherwise scared???

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  36. mattbernius says:

    @Daryl and his brother Darryl:
    *cough* *cough* Bush’s national address on Iraq? *cough* *cough*

    (or does he get an out because 9/11?)

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  37. CSK says:

    @MarkedMan:

    Coulter called Trump’s proposed visit to the border this Thursday “beyond moronic.” He’ll have to be straitjacketed.

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  38. Daryl and his brother Darryl says:

    @mattbernius:
    Valid point. Although I’m not sure that was generating fear from nothing. As you say, 9/11 was a very real occurrence.

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  39. MarkedMan says:

    @CSK: Yeah, I wouldn’t say this is a tipping point, but it certainly is a potential tipping point. I just saw Pence getting hammered by a talking head about why should we trust the president when he constantly says things that aren’t true. Pence did his best to change the subject, but it was interesting that he didn’t attempt what he’s done in the past – parse Trump’s words into something that could be defended. And I’m seeing a lot of buzz today about Republican defections -even on Republican leaning sites like The Hill.

    Again, it’s not important what these specific Republicans are saying, but rather that they are visibly putting distance between themselves and Trump.

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  40. MarkedMan says:

    @Daryl and his brother Darryl:

    As you say, 9/11 was a very real occurrence.

    I get your point, but it is important to point out that a) Iraq didn’t have anything to do with 9/11 and b) They didn’t have WMD.

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  41. al Ameda says:

    Honest Question: Why don’t Democrats start holding press conferences to state that Trump intends to confiscate private property to build his unneeded and unnecessary wall?

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  42. Bob@Youngstown says:

    @KM:

    What’s to stop a future Dem President from declaring climate change to be “national emergency”

    “Climate Change Threatens National Security Says Pentagon”

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  43. Just nutha ignint cracker says:

    @OzarkHillbilly:

    He can’t spend any money that hasn’t been appropriated.

    In the big picture of this particular type of scam, he doesn’t have to spend any money, appropriated or not. He doesn’t even have to get the Construction Battalions to the border. All he has to do is bloviate about it–and subsequently complain about Democrats (who hate America, I might add) blocking his necessary response to the national emergency by not appropriating any money and the weak SoD not giving back like he’s supposed to in a national emergency. It’s perfect–he gets to do nothing and take credit for being decisive at the same time. I’m really not sure why this is lost on both himself and his staff/advisors unless he really believes his own bs about the wall.

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  44. mattbernius says:

    @OzarkHillbilly:

    One minor flaw in that scenario. He can’t spend any money that hasn’t been appropriated.

    If he goes the Nation Emergency route, he can tap into military construction funds are already appropriated. They’ve just been earmarked for other work. But it’s within executive power to reassign them. Here’s a good writeup via Stars and Stripes:

    https://www.stripes.com/news/us/to-build-border-wall-as-a-national-emergency-trump-would-need-to-tap-military-budget-1.563547

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  45. Bob@Youngstown says:

    test

    ReplyReply
  46. Jen says:

    @al Ameda: I would think that would be more of a sticking point with Republicans than is being considered, but perhaps the lack of attention on that amounts to those in Texas who would be affected are already aware (as I noted in an earlier post on this, eminent domain cases that arose out of Bush 43’s Secure Fences Act are still being litigated), and those outside of Texas who want the wall don’t care–to them, the “threat” is a bigger issue and those landowners should be proud to dedicate their property to such a glorious idea, etc.

    Because honestly, that is, or should be, a pretty big issue.

    ReplyReply
  47. al Ameda says:

    @CSK:

    Coulter called Trump’s proposed visit to the border this Thursday “beyond moronic.” He’ll have to be straitjacketed.

    Well, I agree with President Coulter.

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  48. CSK says:

    According to the WSJ, Trump hasn’t yet decided what he’s going to say tonight.

    ReplyReply
  49. Kathy says:

    @CSK:

    According to the WSJ, Trump hasn’t yet decided what he’s going to say tonight.

    You mean Hannity hasn’t told him? I’m stunned.

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  50. mattbernius says:

    @KM:

    What’s to stop a future Dem President from declaring climate change to be “national emergency” to bypass a recalcitrant Congress, divert money from it’s intend source and force the military to engage in a green agenda?

    To be clear, from a legislative perspective, absolutely nothing (within certain bounds).

    Which is a major problem.

    ReplyReply
  51. Kathy says:

    The Washington Post reports El Cheeto is not expected to declare an emergency in his speech tonight.

    That’s worth as much as a contract written on water. He was expected to affirm Article V at the NATO meeting. He was not expected to congratulate Putin on winning a sham election. Now he’s not expected to declare an emergency.

    President-to-be Pence, though, provided comic relief by saying “You know that we could resolve this in a matter of hours if the Democrats would come to the table and start negotiating in good faith.”

    Yeah. Right.

    Trump is expected to make the case for the wall to the American public. I think the expression I want is “a day late and a dollar short.” Don’t you make a case for something before you ask for billions of dollars to implement it? and don’t you wait until you have considerable public support before engaging in brinkmanship? Especially when it comes to shutting down the government, depriving people of services, and depriving employees of their salary?

    Those who persist in the belief that El Dennison is some kind of even mildly competent negotiator, ought to run out and invest their savings and every penny they can borrow in MySpace. I hear social media is gonna be BIG!

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  52. Tyrell says:

    @Jen:
    Word has it that the state of Alabama will be declaring a “state of emergency” soon over the wall – the Clemson defense wall!
    44-16
    “Roll tide!”

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  53. Daryl and his brother Darryl says:

    @Kathy:

    You mean Hannity hasn’t told him?

    Putin…

    ReplyReply
  54. Daryl and his brother Darryl says:

    @Kathy:

    You know that we could resolve this in a matter of hours if the Democrats would come to the table and start negotiating in good faith.

    What that means is, of course, come to the table and give us everything we want.
    Which I would be OK with…right after Mexico pays for the wall.

    ReplyReply
  55. MarkedMan says:

    @Daryl and his brother Darryl:

    Putin

    Off topic but interesting: The Hill is reporting that Manafort flew to Madrid to meet a colleague that is known to be a Soviet agent and shared campaign polling info while acting as Trump’s Campaign Manager. That would be pretty much a slam dunk for collusion. However, TPM is not reporting that, and they are usually on top of these things. So lets wait and see.

    ReplyReply
  56. MarkedMan says:

    @MarkedMan: I see the NYT is reporting the same thing. What’s Trump’s tack going to be on this? It was only my campaign manager colluding with Russian Intelligence? Everyone would have done it! Witch Hunt!!!

    ReplyReply
  57. Kathy says:

    @Daryl and his brother Darryl:

    Putin…

    Him either? Damn! this is beginning like a typical Dennison Cluster F**k, rather than a well-oiled Russian propaganda machine.

    ReplyReply
  58. EddieInCA says:

    @Tyrell:

    That was one serious ass-kicking. I’d never have thought a Saban coached team could be dominated like that. Reminded me of USC destroying Oklahoma in the 2004 Championship game.

    At the end of the game, it was obvious the Alabama players KNEW they’d been obliterated.

    Couldn’t have happened to a nicer program.

    ReplyReply
  59. Mikey says:

    @MarkedMan: This Reddit post has links to all the news outlets reporting this. It is an extensive list.

    https://www.reddit.com/r/politics/comments/adyp24/megathread_manafort_shared_trump_campaign_data

    ReplyReply
  60. MarkedMan says:

    @Mikey: According to TPM, Manafort’s lawyer is saying that contra to appearances, the meeting took place after he was no
    longer chairman.

    ReplyReply
  61. Mikey says:

    @MarkedMan: Even if true, I don’t think that helps him, or the campaign, much. He would still have either gotten the data while chairing the campaign or from someone still in the campaign. Either way, the campaign was involved.

    ReplyReply

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