The Law and Politics of a ‘National Emergency’ | Feb 15 2019

Obama Declared 13 National Emergencies — 11 Are Still Active

|| BigLeaguePolitics

“There are a lot of national emergencies going on. In fact, there are 31 active national emergencies declared under the National Emergencies Act.

Bill Clinton used this authority 17 times. President Trump has only used it three times so far.

Sorry Democrats, this “national emergency” business is not quite the work of “dictators.”

Conservative Tribune reports: “Of Obama’s 11 continuing national emergencies, nine of them were focused exclusively on foreign nations, while only one seemed focused on protecting America — a declaration aimed at punishing individuals “engaging in significant malicious cyber-enabled activities.”

All of the rest of Obama’s national emergencies were focused on blocking property or prohibiting transactions/travel for individuals engaged in various activities in — by order of the date of enactment — Somalia, Libya, transnational criminal organizations, Yemen, Ukraine, South Sudan, Central African Republic, Venezuela and Burundi.

The American people stand with President Trump following his amazing Oval Office address explaining the human cost of illegal immigration.

If President Donald Trump uses the U.S. military to build the border wall along the United States’ international with Mexico by declaring a national emergency, won’t liberals simply run to a Federal judge whom they believe to be left-wing within the Ninth Circuit and block Trump? Can Congress vote to overturn Trump’s declaration of an emergency?

No. If the federal courts actually follow the law, President Trump cannot be prevented from “reprogramming” funds appropriated for the U.S. Department of Defense and actually using the military (such as the U.S. Army Corps of Engineers) to build the border wall.

As noted in the first installment on this topic, Congress has given a president the power to declare a national emergency by 50 U.S.C. 1621 and  50 U.S.C. 1622.  A declaration of an emergency allows the President to reprogram funds in the military budget.  See 33 U.S. Code § 2293 “Reprogramming during national emergencies.”

Trump could reprogram funds from other parts of the Department of Defense budget — including from other DoD construction projects such as on bases, military housing, etc. — and engage in construction in areas of need for the national defense.  The statute says that explicitly (although statutes are never easy reading).

But Democrats are threatening and commentators are warning that such an action would be challenged in court and in Congress immediately.  Can such a plan be blocked?

First, 50 U.S.C. §1622 allows the Congress to over-turn a president’s declaration of an emergency.  If both the Senate and the House each pass s resolution terminating the President’s declaration of an emergency, than the emergency status terminates under 50 U.S.C. §1622.  But clearly the Republican-controlled U.S. Senate would not join the Democrat-controlled U.S. House of Representatives.  Unless a significant number of Republican Senators vote against a border wall built by the U.S. Army Corps of Engineers or contractors with military funds, Congress could not block Trump’s efforts.

(Note, although I argue in the next section that this power has been invalidated by the U.S. Supreme Court, if a court disagrees on that, a legislative veto power should block a lawsuit.  Where Congress has provided a specific method for challenging a declaration of an emergency, the federal courts would normally hold that that method becomes the exclusive remedy.  A lawsuit would be blocked by the fact that Congress provided a non-litigation remedy.)

Second, however, the Congressional veto process described above has been ruled unconstitutional by the U.S. Supreme Court, in INS v. Chadha, 462 U.S. 919 (1983), finding a legislative veto of Executive Branch action unconstitutional.  Congress passed many laws which specifically enabled Congress to veto regulations or actions under that law.  The U.S. Supreme Court found a legislative veto violates the structure or architecture of the Constitutional system.

Laws go to the President for signature or veto.  Congress cannot reach over and pull a law back.  Congress must pass a new law and present it to the President for signature if dissatisfied with how the law is working out.  The U.S. Supreme Court had no hesitation finding that the Congress had over-reached, based only on the implied architecture of the Constitution.

In Chadha50 U.S.C. 1622 was one of the laws explicitly discussed.  The dissenting opinion specifically warned that the Chadha decision invalidated Congress’s ability to overturn a presidential declaration of a national emergency.

Therefore, Congress cannot overturn a declaration by President Trump that the open border is a national emergency.  Even if the U.S. Senate were to side with the Democrats, Chadha explicitly ruled the Congressional veto (termination) of a presidential declaration to be an unconstitutional distortion of the familiar “Schoolhouse Rock” means by which laws are passed and signed by presidents.  Once a law is signed, there is no “claw back” right by Congress.

Third, of course, critics are discussing whether Trump’s actions would be constitutional.  Here, however, Congress passed a specific statute, in fact a series of statutes.  So there is no question about the President’s power to do what the Congressional statute has explicitly empowered him to do.

Some even point to a rather famous Constitutional landmark case — Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) — in which the U.S. Supreme Court explicitly ruled that President Dwight D. Eisenhower did not have the power to temporarily nationalize the U.S. steel industry to avert a strike for national defense.  However, Youngstown was not that simple.  Youngstown analyzed the inherent powers of Commander in Chief as modified by Congressional agreement by statute.

The U.S. Supreme Court explicitly analyzed that the President’s powers are at their greatest (zenith) when he acts not only by his inherent powers as President but also by the agreement of a statute passed by Congress.  In Youngstown, Eisenhower did not have any statute supporting his action and the Court reasoned that he was actually acting in conflict with relevant statutes.

Here, the Congress has already enacted and President George W. Bush signed into law, the Secure Fence Act of 2006.  It is already the law of the land that a border wall shall be built along the United States’ Southern border.  Neither Congress nor any private plaintiff can challenge the official determination that a border wall or barrier shallbuilt.  That is the law.  That is the official determination of both the U.S. Congress and the Commander in Chief.

The Secure Fence Act of 2006 was never implemented (other than a few miles) because Congress did not appropriate the funds to pay for it.  There are two steps:  Authorization and Appropriation of funds.  The decision to build a border wall is final.  The only question is applying funds to make it happen.

Building of a border wall under the 2006 Act was also not completed because the Swamp and Deep State sabotaged it.  Using classic bureaucratic games, the bureaucracy and open borders legislators followed “designed to fail” steps that ground the construction to a halt.

Note that in spite of the word “fence” in the title, the law does not actually mandate a “fence” in particular.  The wording of the Act is not about a “fence” but about any kind of barrier customized to the particular terrain in each location to the extent necessary to “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.”   That is “all.”  As in “all.”

So the Secure Fence Act of 2006 requires building “whatever it takes” — not a “fence” per se.  The Act does require specific enhanced barriers and lights, cameras, and sensors, in some named locations.

Fourth, could liberals run to the courts to block Trump from using the military to build a border wall?  No.  Only those with “standing” can bring a lawsuit.  How is anyone harmed?

The federal courts have been waging Jihad against citizens bringing lawsuits for decades.  The federal courts have been raising the bar higher and higher to make it nearly impossible for anyone to challenge the actions of government agencies or public officials.  Specifically a complaint that is shared generally by much of the population cannot establish standing.

Contrary to strongly-held popular belief, the U.S. Supreme Court has clearly ruled that taxpayers do not have standing to challenge government spending, revenue, or action merely because they are taxpayers.  See, Daimlerchrysler Corp. v. Cuno, 126 S.Ct. 1854, 164 L.Ed.2d 589, 547 U.S. 332 (2006).  So the Left cannot block Trump’s plans by suing as taxpayers.  (The only exceptions involve use of funds to establish a religion or local government taxpayers.)

Similarly, Members of Congress do not have standing either.  Certainly individual Members of Congress do not.  See Raines v. Byrd, 521 U.S. 811 (1997).

To bring a lawsuit, one must show that they are tangibly harmed, personally, not just in disagreement with a policy.  If Trump uses some of the $700 billion in the omnibus bill to build a border wall, everyone will be more safe.  How is anyone harmed?”

….read more @ BigLeaguePolitics

 

Fact Sheet: The Secure Fence Act of 2006 – The White House Archives

 

The Secure Fence Act Builds On Progress Securing The Border

By Making Wise Use Of Physical Barriers And Deploying 21st Century Technology, We Can Help Our Border Patrol Agents Do Their Job And Make Our Border More Secure. The Secure Fence Act:
  • Authorizes the construction of hundreds of miles of additional fencing along our Southern border;
  • Authorizes more vehicle barriers, checkpoints, and lighting to help prevent people from entering our country illegally;
  • Authorizes the Department of Homeland Security to increase the use of advanced technology like cameras, satellites, and unmanned aerial vehicles to reinforce our infrastructure at the border.”

….read more @ George Bush White House Archives