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The Border Is Not an Emergency; Trump’s Power Grab Is

The Russians helped stoke the right-wing conspiracy theory that President Barack Obama would declare martial law and trample on gun rights.

But now it’s Donald Trump who is throwing out the rule of law and declaring a national emergency where there is no emergency.

Emergency powers exist to allow the President to handle a sudden, urgent problem that there isn’t time to address through the normal legislative process. Those powers arose in anticipation of nuclear attack or other real emergencies that require immediate decisions or that could temporarily incapacitate Congress.

The fact that Congress not only won’t do what the President wants but has explicitly voted against it does not constitute an emergency.

If the failure of the Legislative branch to do what I want constituted an emergency, I’d be at DefCon 1 every darn day.

Once Trump signs this false emergency declaration, the list of new powers he can invoke should make all those who feared Obama martial law tremble:

…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 [Elizabeth Goitein, “What the President Could Do If He Declares a State of Emergency,” The Atlantic, Jan/Feb 2019].

Shut down the Internet, impose sanctions on Americans, deploy troops on Main Street—all because he lost a negotiation with Congress over $5.7 billion for one useless (useless, useless) campaign slogan. Read this while you can.

I don’t feel Great Again™.

94 Comments

  1. happy camper 2019-02-15

    Oh my libs get hysterical. Obummer called it 13 times you weren’t screaming then.

  2. Jason 2019-02-15

    Who says it is not an emergency?

  3. Donald Pay 2019-02-15

    I don’t know about most liberals, but I’m not hysterical. This is just the usual way fascism works. This Trump[ action had been utterly predictable given the way fascism works, and almost certainly the lawsuit has been drawn up months ago to address this situation. Unfortunately for fascists like happy and Jason, we have a constitution and courts. Trump will be enjoined from his fascist action, and he will be what fascists are: a loser.

    Trump, by the way, has lied about his height on his recently released doctor’s report, which, of course, he wrote. He’s 6’3″ according to him, but he’s shorter than 6’3″ in reality, as anyone can see when he’s standing next to real 6’3″ people. Why lie about that? My guess: he’s trying hard not to be obese based on his body mass index. One way is to stop eating junk food and exercise. Another way is to “grow” a couple inches and create a fake doctor report. So, not only is he a loser, he’s a liar, but we already knew that.

    Uh, yes, Obama declared national emergencies, but not after Congress had specifically taken action nor after Congress declined to provide funds. Trump’s emergency lie is unprecedented and unconstitutional. Don’t be losers and liars, like Trump. Read up a little before you post.

  4. Jenny 2019-02-15

    I don’t like Nancy Pelosi. But I Do have to give her credit with knowing how to handle Trump. She is his worst nightmare.

  5. mike from iowa 2019-02-15

    I doubt Asian immigrants come across the Southern border and they are the most numerous immigrants since 2010, according tom Pew research. By 2055, Asians will make up 38% of the immigrant population and Hispanics 31%. There is no emergency on the border other than Drumpf being threatened by his base to keep his campaign promise to build a wall and make Mexico pay for it.
    \
    http://www.pewresearch.org/fact-tank/2018/11/30/key-findings-about-u-s-immigrants/

  6. mike from iowa 2019-02-15

    If a certain Troll would get actual, factual, stats he would know there are more immigrants heading South than are coming in. He would also know immigrants contribute billions to SS and Medicare each year they them selves cannot receive as they are not citizens. They also contribute heavily to US economy buying goods and services and no they do not, except in extreme cases,m collect any welfare benefits just fo4r being in America. Those are all lies propagated by wingnuts to keep voters in line.

  7. happy camper 2019-02-15

    And the interesting thing about Asians, they quickly rise to the top, above whites, by our metric of success and if you find it necessary to dissect people by categories. They are actually discriminated against at universities by Identity Politics because too many score at the top and would push others out. They are a POC that blows Deb’s theories right out the window. But oh how these libs love to label by race, quantify outcomes, and discriminate.

  8. Dana P 2019-02-15

    My house just caught on fire. I think I’ll wait two years before I call the fire department.

  9. Kal Lis 2019-02-15

    Trump’s argument that this declaration, which I believe will be his fourth, is not a rare power grab is disingenuous

    From the AP,
    ….The presidents he cites did not use emergency powers to pay for projects that Congress wouldn’t support.

    Obama’s emergency declarations were aimed at blocking access to property of “certain persons” involved in crises abroad — Ukraine, Burundi, Venezuela, Central African Republic, South Sudan, Yemen, and Libya, among other countries. He also used the declarations to punish the Russian government and transnational organizations.

    His only declaration not centered on foreign interests came in 2009, when he declared a national emergency to deal with the H1N1 flu pandemic.

    Bush and Clinton were similarly focused on foreign crises in their declarations. Clinton used one to prohibit transactions with the Taliban in 1999; Bush issued several in response to the 2001 terrorist attacks.

  10. mike from iowa 2019-02-15

    Who says it is not an emergency?

    Most likely anyone with working brain cells who can read.

  11. Janet 2019-02-15

    The border is a national emergency.we can’t afford to give them all these freebies and make the working taxpayers fund this. They are bringing diseases and crime and drugs.and sex trafficking.

  12. Loren 2019-02-15

    Saw Smilin’ Mike’s brief interview on the news last night. Same old politician. Just threw up his hands and basically said, “I don’t like an emergency declaration, but what are ya gonna do?” Just like the reaction of the GOP under Obama, right? B.S.

  13. Jenny 2019-02-15

    I agree with Nancy, it is definitely a manhood thing with Trump. He needs to please his rednecks.

  14. jerry 2019-02-15

    South Dakota continues to follow the do nothing trumpian agenda with their silly legislature that does nothing but waste time. I support this fake national emergency for the future and can’t wait for the Democrats to get in and do the same. Here in South Dakota, we vote for change in government and then the legislature cancels it out. We need an emergency here, a wall around Pierre to keep the monkey’s in the zoo whilst the rest of us live our lives.

  15. jerry 2019-02-15

    BTW, when Obama and Bush were in office, it was the congress who funded the wall, not the president stealing appropriated money from Defense. That is what is called democracy, by the people’s vote.

  16. Donald Pay 2019-02-15

    Yeah, there’s an emergency on the border and that fat fool starts off with trade talks. Apparently, he’s trying to cover up his FAILURE with a little rosy trade talk. Certainly doesn’t seem as if this is much of an emergency, does it?

  17. Donald Pay 2019-02-15

    Listening to our mentally ill President speak on the emergency we’ve gone back to trade and China right in the middle of his supposed argument on why this is an emergency. Now wer’re back to “Make America Great Again” Man, this is evidence as to why this ain’t an emergency. If he can’t give a coherent reason for why this is an emergency, it pretty much an admission as to why this is more about ejaculating on his base than an emergency.

  18. Donald Pay 2019-02-15

    25th Amendment.

  19. Donald Pay 2019-02-15

    He’s talking about using the military budget as a slush fund to do whatever he wants to do. He’s talking a lot about “drugs,” which come through ports of entry and wouldn’t be affected by a wall.

    Then he argued against the wall by saying he already stopped all the gangs and drugs and violence.

    The guy is a nutcase.

  20. mike from iowa 2019-02-15

    Loren, someone needs to check “Smiling Mike” to make sure he wasn’t replaced by “Cardboard Mike.” Seriously, I wouldn’t know how to tell the difference unless “Cardboard Mike” was prone to not making stoopid statements.

  21. John Tsitrian 2019-02-15

    It wasn’t “Molly Bloom’s soliloquoy,” but James Joyce would’ve admired our Prez’s stream-of-consciousness this morning, broken up as it was by that little musical riff on appellate court cases. And since when does an “emergency” present the options of “I didn’t have to do this but I wanted to get it done faster?”

  22. Porter Lansing 2019-02-15

    It’s a very good day in America. Trump is taking money from a highly inflated military budget. That’s good … except for all the grunts that won’t get pay raises. Trump just gift wrapped the Senate to our Democratic Party. That’s very good.
    Now, he can have a couple Dakota Dunes Slime Burgers w/Lederman Sauce and give our farmers a big tariff kiss.

  23. jerry 2019-02-15

    No military housing upgrades troopers, get yourself a tent and live like the best you can. You know your trumpian republicans really care about you and your families roof over your head…Of course they do.. not. “WASHINGTON — Despite objections from Congress, White House officials will shift about $3.6 billion in military construction funds to build President Donald Trump’s controversial southern border wall, potentially delaying repairs and upgrades for facilities at a host of bases worldwide.” Elsworth, were looking at you baby…Give Rounds and Thune a call and tell them thanks. https://www.militarytimes.com/news/pentagon-congress/2019/02/15/white-house-promises-using-military-funds-to-build-trumps-border-wall-wont-hurt-force-readiness/

  24. jerry 2019-02-15

    trump has gone loco. Mental illness can be dangerous. The 25th needs to be imposed.

    “The top U.S. general in the Middle East and Central Asia said Friday that President Donald Trump was wrong to withdraw all U.S. troops from Syria and to declare without evidence that ISIS had been defeated.

    “It would not have been my military advice at that particular time,” Gen. Joseph Votel, head of U.S. Central Command, told CNN, joining current and former military leaders who have publicly criticized the president’s foreign policy decisions. “I would not have made that suggestion, frankly.”

    Votel testified this month before the Senate that he “was not consulted” on the president’s pullout decision, even though he’s the commander on the ground. He knew of Trump’s desire to withdraw troops from Syria, but “I was not aware of the specific announcement,” he said during a Senate Armed Services Committee hearing on Feb. 5.”

  25. bearcreekbat 2019-02-15

    I don’t think a court challenge to the Trump’s emergency declaration will be successful.

    In reviewing Article II of our Constitution,

    https://constitutioncenter.org/interactive-constitution/articles/article-ii

    there is no language giving the President any power to declare a national emergency. Thus, his power is based totally on an act of Congress. In the Act granting that power it appears Congress neither defined, nor provided any criteria to determine, what constitutes a national emergency. Without a definition or criteria, that determination seems to be within the unfettered discretion of a President.

    Meanwhile, since the Constitutional power of the President is not in question, this becomes a matter of statutory interpretation for the courts. Trouble is, Congress has not provided for judicial review of the President’s decision. Rather, it explicitly stated the remedy to challenge this exercise of power is in the hands of Congress by resolution.

    Under these circumstances, my money is on the courts to declare the exercise of the emergency presidential power a political question that only Congress is empowered to resolve. Unfortunately, if the President vetos this resolution it will take 2/3 majorities to override it.

  26. mike from iowa 2019-02-15

    Drumpf hisownself thinks the 9th Circuit Court of Appeal will sideline his emergency declaration.Then he can spread more false rumors about the court like he usually does.

  27. bearcreekbat 2019-02-15

    My above analysis assumed that the President has the power to divert appropriated funds if there is a national emergency. I have heard one commentator contend that the President cannot constitutionally divert these funds, but that seems based on the proposition that there is no emergency, which, as I pointed out above seems to be a decision that is up to the President, without statutory criteria or standards to limit the exercise of presidential discretion.

    The lack of criteria or standards, however, does seem to raise at least one constitutional argument challenging the President’s declaration of an emergency when evidence establishes that there is no emergency in fact.

    The challenger could argue the statute authorizing this action by the President in an unconstitutional delegation of powers to the President precisely because Congress completely failed to enact guidelines and restraints necessary to limit executive power over the Article I congressional power of the purse. See e.g,

    https://en.wikipedia.org/wiki/Nondelegation_doctrine

    This argument was successful in a case or two in the 1930’s that challenged Roosevelt’s actions addressing depression issues, but has failed in every case I am aware of since that time. While never actually put to rest by the SCOTUS, in 1989 the Mistretta case established a nondelegation test that has lead subsequent decisions to pretty much treat the theory as dead.

    Assuming that the power to divert allocated funds has been properly authorized by Congress during a true emergency, I have to stand by my prediction that challenges will ultimately lose in court based on the political question doctrine.

    https://en.wikipedia.org/wiki/Political_question

  28. Cory Allen Heidelberger Post author | 2019-02-15

    Ignorant Trumpists like Janet take some solace in being able to quote their equally ignorant hero, Donald Trump. But instead of reciting Trump’s list of false arguments, why not repeat the single most truthful thing he said today after signing the order: “I didn’t need to do this.”

    Didn’t need to do this: in Trump’s own words, this is not an emergency.

  29. Donald Pay 2019-02-15

    Trump is going to have no problem losing a court challenge. Trump admitted in his statement today that there was no emergency that a wall would solve, so I don’t know how a court could hold he has a right to declare an emergency whose sole purpose is to build a wall. He said this several times in different ways, but most clearly he took credit for massively reducing drugs, violence and gangs during his administration despite not building any wall. I admit that the guy was needing medication badly as he rambled on and on during his statement. He also said, “I didn’t need to do (the emergency declaration).” He said he could have built the wall over a longer period. So, between admitting there was no emergency and saying he could build the wall over time, he essential drove his emergency declaration into a deep legal sinkhole.

  30. mike from iowa 2019-02-15

    Could someone explain to me the freebies these people get because from what I have read over and over from reputable outlets is these immigrants are not eligible for SNAP benefits or cash assistance.

  31. Cory Allen Heidelberger Post author | 2019-02-15

    Donald Trump recited the same lies as Janet today:

    Sex trafficking?

    There’s no data on how many are smuggled illegally across the border with Mexico for human trafficking, as we said in our story when Trump made a similar claim in his State of the Union address. But experts told us legal ports are the typical mode of entry in the bulk of the cases they deal with concerning foreign nationals. A spokesperson for Polaris, which operates the National Human Trafficking Hotline, told us “the vast majority of people are coming through legal ports of entry.” That’s based on statistics the group has compiled from the calls it receives through the hotline.

    In addition, the United Nations’ International Organization on Migration has found that “nearly 80% of international human trafficking journeys cross through official border points, such as airports and land border control points,” based on 10 years’ worth of cases on which the IOM has assisted [Eugene Kiely, Robert Farley and D’Angelo Gore, “Fact Check: Trump’s National Emergency Remarks,” USA Today, 2019.02.15].

    Drugs?

    According to the DEA’s 2018 Drug Threat Assessment, the majority of drugs coming in illegally over the southern border are coming in through ports of entry.

    “A small percentage of all heroin seized by [Customs and Border Protection agents] along the land border was between Ports of Entry,” the DEA reported [Gina Martinez and Abigail Adams, “Trump Repeated Many of His Old Claims About the Border to Justify the State of Emergency. Here Are the Facts,” Time, 2019.02.15].

    Freebies?

    Attributing the cost of welfare consumed by the entire second-generation to immigrants returns results that are similar to our previous findings. Immigrants, whether one includes their U.S.-born children or not, consume fewer welfare and entitlement benefits than native-born Americans in the third-and-higher generations [Alex Nowrasteh, “Immigrants and Their Children Use Less Welfare than Third-and-Higher Generation Americans,” CATO Institute, 2018.06.04

    I can live with honest debate with people who come to different conclusions about the merits of policy actions. But I am disgusted that I have to spend this much time arguing with an occupant of the White House and his adherents who make statements ranging from unsubstantiated to outright false, get called on it, and then keep repeating the same malarkey as if there’s nothing wrong with spreading falsehood.

  32. jerry 2019-02-15

    Meanwhile, we are destabilizing Venezuela for their oil. Can anyone give a reason why, if we are so concerned now about brown folks, that we have not allowed more of them to enter the country because of asylum needs?

  33. Certain Inflatable Recreational Devices 2019-02-15

    Janet, you are the disease.

  34. mike from iowa 2019-02-15

    Emergency? Mueller suggests Manafort spend 19 years in prison, Buttina will be investigated by Senate Finance committee seeking info on her meetings with Americans and Dems in congress want to have a sit down with Drumpf’s favorite grope toy-Ivanka.

    And Drumpf’s wall has a walk through door for employees of his golf courses.

  35. jerry 2019-02-15

    Chuck Schumer ““Mr. President, how can this possibly be an national emergency if you’re saying you don’t need to do it?” -Chuck Schumer Kinda says it all doesn’t it. Any kind of distraction from his failing health to his failed agenda’s, that is trump and his crooked sidekicks.

  36. Robin Friday 2019-02-15

    The only national emergency existing at our southern border is thousands of children having been abducted from their caretakers by our government, with no plan and no thought whatsoever in place to reconnect them with their proper caretakers, and those children being imprisoned by their abductors.

  37. Robin Friday 2019-02-15

    Jason, who said it’s not an emergency? Trump did. Just today. When he said “I didn’t need to do this, but I wanted it to happen faster”.

  38. o 2019-02-15

    I still believe that the wall (which was a metaphor created by candidate Trump’s campaign staff to keep candidate Trump on topic) became real in his mind to the point that it was not a physical barrier between the people of two nations, but a monument to the man who erected it. This has become a vanity project – the yuge-est monument in the nation.

  39. Robin Friday 2019-02-15

    New rule according to “Grandmas for Good”:

    If a president can go on vacation just hours after declaring a national emergency. . .

    it isn’t a national emergency.

  40. Debbo 2019-02-15

    He is so insane. And so dangerous to this good nation. We can’t underestimate the further damage his craziness can do to this good nation, especially as he has the terribly evil Chinless Wonder McTurtle enabling him. McTurtle is not crazy. He is as evil and vile as Stephen Goebbels Miller.

  41. David Bergan 2019-02-15

    If a president can go on vacation just hours after declaring a national emergency. . . it isn’t a national emergency.

    If I remember correctly, after the assaination of Ferdinand, Kaiser Wilhelm pledged Germany’s support to Austria-Hungary (effectively starting WWI) and then took off on a 3-week pleasure cruise.

    Kind regards,
    David

  42. Moses6 2019-02-15

    Sounds like slick Mike all for it and the man in the empty suit Thune to.

  43. leslie 2019-02-16

    As we know kudos to the 2nd amendment, it may be likely as Trump is pressed to lose his job that he’ll assert his UNCONDITIONAL God Given CONSTITUTIONAL RIGHT OF SELF DEFENSE and go out in a hail of bullets. The whole hillbilly clan of gun toting Trumps, ala Rango, may pull out their elephant guns in reaction to Mueller’s upcoming indictments.
    It’s an emergency!
    Regulate guns!

  44. Loren 2019-02-16

    This morning’s Argus Leader, “Thune, Rounds blame Democrats for declaration of nat’l emergency.”
    Of course they do, but did they declare obstructionist Republicans were to blame when President Obama used exec. power? The stench of hypocrisy hangs heavily on these gents!

  45. mike from iowa 2019-02-16

    Two years into this cluster of a nightmare do you think Drumpf has been given enough chances to succeed, or not? Personally speaking, I know he has failed miserably. Another mass shooting yesterday, but there is no emergency with the availability of guns, just an imaginary, made up border crisis a wall won’t fix.

  46. Cory Allen Heidelberger Post author | 2019-02-16

    Kal Lis is most certainly not hysterical. Dismissing critiques of Trump’s false emergency declaration does not address the substance of those critiques.

  47. mike from iowa 2019-02-16

    BTW- Drumpf has got the Scotus to take up the citizenship question on the census this term, and he sounds like he believes the Scotus will rule to suppress minority voters in his favor. Kavernmouth has shown what he thinks about precedence even after assuring Sen Collins he is a firm believer in precedence.

  48. Cory Allen Heidelberger Post author | 2019-02-16

    The fact the a Republican White House was not able to get a Republican Congress to do what it wanted for two years is not a national emergency. It could be an emergency at RNC headquarters and the 2020 GOP convention.

  49. Cory Allen Heidelberger Post author | 2019-02-16

    BCB, that’s a reasonable analysis. I don’t like the conclusion, but that doesn’t mean you’re not right. (It certainly doesn’t mean you’re hysterical.)

    IF BCB’s analysis is right, then Congress (more specifically, Republican members of Congress) will have to decide what’s more important: blind partisan fealty to an incoherent bully who is unable to govern but rallies their base in 2020, or the proper role of Congress in apportioning funds and preventing unchecked exercise of Executive authority. As Loren points out, the comments of South Dakota’s Republican Senators indicates they’ll choose Trump over spine and the national interest.

  50. Cory Allen Heidelberger Post author | 2019-02-16

    I am thinking about the second portion of your argument, BCB, suggesting that we could argue Congress failed to define “national emergency” with sufficient clarity to authorize any President to declare one. Would it be kind of like if Congress passed a law authorizing the President to crack down on “hogwash,” without offering any clear definition of the term?

    I’m thinking there’s an analogy to porn here: we know a national emergency when we see it. Pearl Harbor, 9/11, Hurricane Katrina—yeah, emergencies, scramble the first responders. Congress debates for two years and decides a border wall isn’t among the policies it wants to fund for immigration—that’s just a political dispute.

    Consider this historical analogy: Go back to 2002. Suppose Congress had voted down the resolution authorizing President Bush to wage war on Iraq. Suppose President Bush had responded by declaring a national emergency and waging that unauthorized war. Would that hypothetical action have been justified?

    It’s one thing for the President to see missiles or flood waters coming in and decide he can’t wait for Congress to take action. It’s another for the President and Congress to have plenty of time to look at a situation, for Congress to decide in several votes over several months that the situation is not an emergency, and for the President to defy Congress by declaring the opposite.

  51. Darin Larson 2019-02-16

    “I could do the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster.”

    https://www.facebook.com/ABCNews/videos/356197998315047/?v=356197998315047

    If the Supreme Court allows a president to decide an emergency is anything that the president says is an emergency, we no longer have a president with power limited under the Constitution–we have the possibility of having a dictator in presidential clothing. Furthermore, Trump has stated in the quote above that this is not an emergency. It is simply a matter of political expediency for him. Furthermore, Congress has specifically circumscribed his power to spend money on this issue as is its role under the Constitution.

    If the Supreme Court does not rein Trump in on this issue, the precedent will be clear that we are not a nation of laws, but merely one of untempered political factions willing to push their political might at any opportunity well beyond the bounds established by our nation’s founders. If the Supreme Court does not stand up against unfettered presidential power here, the Court will lose respect and a Court without the respect of the citizens is a failing of democracy itself.

    None of this is good for our country. None of this is making America great again.

  52. Donald Pay 2019-02-16

    Cory stated: “IF BCB’s analysis is right, then Congress (more specifically, Republican members of Congress) will have to decide what’s more important: blind partisan fealty to an incoherent bully who is unable to govern but rallies their base in 2020, or the proper role of Congress in apportioning funds and preventing unchecked exercise of Executive authority.”

    Well, that will be an easy decision. They’ll go with Trump, because they’ve demonstrated for quite a while they have no understanding of “the proper role of Congress in apportioning funds and preventing unchecked exercise of Executive authority.”

    Fascists have always viewed the Legislative Branch as an impediment to the mythological greatness of the utopian state they seek to install. They value the “strong man,” because dealing with the complexities of real governance gets in the way of their goals. That’s why everything will become an “emergency.”

    Rounds and Thune think they matter. They don’t. And what they think doesn’t matter, either. The Republican Party has no principals or platform anymore, the Senators have no voice, but Trump’s. They have surrendered to Donald Trump, and they will do his will.

    We have entered fascism.

  53. David Bergan 2019-02-16

    David, consider how Germany then fared in World War I.

    Yep. That was implied.

    Kind regards,
    David

  54. bearcreekbat 2019-02-16

    I have noticed than none of the talking heads, including legal eagle experts, that I have seen or heard in the media have asked the same legal questions I raised. This could suggest my concerns about a lack of a remedy in our courts could well be a figment of my fertile imaginination.

    That said, I suspect that if the courts were actually willing to evaluate whether there is in fact a national emergency, Trump would clearly be enjoined from this attempt to exercise Article I power.

    My point, however, is that I doubt whether the court will even consider that factual question. Instead, the SCOTUS (and most lower courts) will rule that the statute delegates that determination to a President, subject to congressional ratification by inaction or rejection by congressional resolution. That would make it precisely the type of “political question” that courts must defer to the judgment of the political branches of government.

    As much as there is little or no argument contesting the rather obvious fact that Trump is a threat to our country and his behavior has endangered or freedom and the needs of the US, theoretically he is doing what any President might rationally be expected to do, namely, act to discover and expand the limits of the constitutional powers of the executive, as purportedly authorized by the statutory delegation of Article I powers.

    If the President is found to be acting within his statutory authority, and that Congress’s delegation of this authority was permissible under the Constitution, then the fault for the damage to our nation more accurately falls in the lap of Congress, rather than with the President, including in particular our two sitting Republican Senators given their ability to affect the current close balance of power in the Senate.

    A Congressional majority that actually cared about our Constitution, democracy, and a government free of facism would immediately prioritize two steps. First, it would adopt a resolution rejecting Trump’s emergency declaration. Second, it would amend the 1976 statute granting the executive emergency powers. The amendments would enact express limitations on the exercise of this delegated congressional power, including authorizing judicial review of any factual or legal claims made by a President, aimed at preventing a repeat by another President who might share Trump’s abhorent proclivities.

  55. leslie 2019-02-16

    Thehill, J. Turley, 2.16.19 editorialized that expecting SCOTUS to do what Congress won’t in reigning in Trump or executive overreach, is fruitless, but procedurally McConnell can’t hide and rather must bring a vote to the senate floor which could block Trump the traitor. Egg on beanballer Mitch’s face (and Thune’s) would be satisfying.

  56. Jason 2019-02-16

    Robin said:

    Jason, who said it’s not an emergency? Trump did. Just today. When he said “I didn’t need to do this, but I wanted it to happen faster”.

    He’s saying he didn’t have to declare it. That doesn’t mean there is no emergency if he doesn’t.

    There would be no emergency if people would stop invading the USA.

  57. mike from iowa 2019-02-16

    Troll, where is the law that says people cannot come to America? Don’t give yer BS they have to come through legal entry [points because they do not.

    Your link does not say that more people favor a wall or a partial wall.

    What is the emergency when immigration is down, more immigrants leave America than are coming here and more immigrants are Asian and Indian than Hispanic? Hint, the emergency is the fact you and Drumpf can’t tell then truth to save yerselves.

  58. Roger Cornelius 2019-02-16

    mike from iowa, Troll posted a opinion poll date 9-12-17 to make his argument. There’s nothing like staying on top of all this. Troll thinks we don’t look at these things.
    The Y2K crisis was more of a national emergency than Trump’s wall emergency.

  59. W R Old Guy 2019-02-16

    Here is Ann Coulter’s take on Trump’s National Emergency.

    No, the goal of a national emergency is for Trump to scam the stupidest people in his base for 2 more years. https://t.co/6DQSkqxV8h

    — Ann Coulter (@AnnCoulter) February 15, 2019

    Are you listening Jason?

  60. leslie 2019-02-16

    Trump business plan HIRES undocumented aliens, then shafts them.Invasion? Like Crimea? Neither Trump nor GOP or employers are adequately prosecuted. Reporter Atkinson’s HILL/polling piece is by a Benghazi proponent, an ACA opponent, author of 3 books criticized for politicized content, fake news, antivacine stance and her TV employer Sinclair is interested in taking down Democratic institutions.

  61. Debbo 2019-02-16

    Cory stated: “IF BCB’s analysis is right, then Congress (more specifically, Republican members of Congress) will have to decide what’s more important: blind partisan fealty to an incoherent bully who is unable to govern but rallies their base in 2020, or the proper role of Congress in apportioning funds and preventing unchecked exercise of Executive authority.”

    I don’t think it’s either one. Chinless Wonder McTurtle is concerned with protecting his own hind end. He’s in dirty with Pootie too, as are several other GOP traitors in DC. They don’t give a damn about preserving the democratic greatness of the USA. They want to keep themselves out of prison! That’s their 1 and only aim.

  62. Porter Lansing 2019-02-16

    Big, Bad California sued Trump almost immediately after the “he-mergency” was declared for diverting funds (already allocated) to help the tens of thousands of wildfire victims. Cali has the money and the judges to drag this out. Best guess estimate? First work on the wall won’t start for maybe six years, if ever.

  63. Roger Cornelius 2019-02-16

    How has everyone survived
    Day #1 of our national crisis?

  64. Debbo 2019-02-16

    It’s been really terrifying Roger! I’ve never been in a national emergency like this before!

  65. Porter Lansing 2019-02-16

    Pretty busy, Roger. I joined a doomsday preppers group and began digging my fallout silo. Put together a “bug out bag” and bought a 10,000 liter water purifier. You?

  66. jerry 2019-02-16

    Where did you find that 10,000 liter water purifier Porter, I’ve been searching all the Domesday sites, but they seem sold out. I even described myself as a red state bedwetter, but alas, no luck. Next step is to call Thune and Rounds to ask for help in locating. Gotta go and check on the MRE’s. Good luck to you all…….

  67. jerry 2019-02-16

    Oh, something else. Don’t count on tax refunds to pay for your bugout kits, ain’t gonna happen… I had to use my Cryptocurrency currency to get what I could get….Don’t know if I got took or not…This is something I will work on in the bunker…how to divide Bitcoins…

  68. Porter Lansing 2019-02-16

    You prolly got took, Jerry. Text me your personal wallet password and I’ll help you out. 😳

  69. Roger Cornelius 2019-02-16

    Glad to hear you are all making due during this time of hardship.
    I drove down to Igloo, SD to see if I could buy one of those bunkers they have for sale down there, but couldn’t find anyone home.
    Damn Trump is putting my life in jeopardy.

  70. Loren 2019-02-16

    I’ve just resigned myself to the fact that we will be overrun and started a crash course in How to Speak Spanish. :-)

  71. leslie 2019-02-16

    You guys are funny but prepper, militia and others are heavily armed everywhere. I see ‘um in grocery stores, big black macho 4x4s idling for emergency getaway, ar15 decals in windows. Unstable?

    As dems keep shoving back it worries me. BTW have we discussed “Sealed vs. Sealed”, Mueller’s grand jury indictment and ignored subpoena of an unknown corporation owned by an unknown country? Judicial penalties are stacking up at $50K per day. All this high level litigation forced by unlawful acts of Trump and GOP is billed at $500 per hour or so and Trump isn’t paying for it and he is starting to attract good lawyers. Wm. Barr is no slouch. You can bet Mitch has the best legal minds in his corner. This is extremely dangerous waters we are fighting. Waste of a brilliant nation’s energy and resources, and innocent little people are paying the price.

  72. Porter Lansing 2019-02-16

    We liberals (*see below) now have a new, go to response to half-baked comments from Jason, Happy Camper, Ryan etc. When you read something outlandish, that barely rates a response, just answer “Yeah, right. And Mexico’s gonna pay for it.” It’s up there with Benghazi, Benghazi, Benghazi.
    Remember when the slam against we liberals was, “If you like your plan, you can keep your plan.”? That line even won 2013 Politifact – Lie of the Year. No political lie will surpass “And, Mexico’s going to pay for it.” for a long, long time. Trump is truly America’s Top Liar.
    * When I started reading DFP years ago, the word “liberal” was a complete joke in SD. (So was politically correct but we’ll discuss that another time) Almost no Democrats called themselves liberal but being from CO, I did. While Republicans have used the word “liberal” with great gusto to marginalize Democrats over the last couple decades, it’s becoming more and more en vogue — at least among Democrats. While just 29 percent of Democrats used the L-word in 2000, 44 percent use it today.
    That’s still well shy of the 70 percent of Republicans who identify as “conservative,” of course.- WaPo

  73. mike from iowa 2019-02-16

    Yeah, Roger. I discovered I am too large to hide under the desk at local elementary school. Have to take this one standing up and daring it to do its damndest. Thanks for asking, my friend.

  74. jerry 2019-02-16

    Just remember this leslie, those big black macho 4×4’s run out of petrol and then they are just that. When the macho is on the street, they are about as worrisome as a cloudy day. Just think of 2020 for perfect vision. Mitch told trump that there were 70 votes to keep the government open, so no veto. Do the math, that means there were many republicans that were willing to toss this monkey boy under the bus. Democrats have 47 in the senate, that means 23 republicans, at least, have had enough. That is not good math for a feller that might get his fat arse impeached. Smile my friend, let the clouds do their thing.

  75. Debbo 2019-02-16

    I’ve always been a “liberal,” and could never imagine being anything else, regardless of where I lived or what others said. It’s not going to change.

  76. leslie 2019-02-16

    Business Insider 12.18.18. Rachel Maddow 2.13.19 adds Republican lobbyist Sam Patton guilty plea cooperation with Mueller goes to heart of the COLLUSION investigation in another invisible case. Patton is oinked (I meant linked) to Cambridge Analytica and Constantine Kilimnik, and prolly grdz :)

  77. Cory Allen Heidelberger Post author | 2019-02-17

    Hey, Bearcreekbat! Can Congress pass a law delegating its appropriations authority to the Supreme Court? Or would we have to amend the Constitution to allow such delegation?

  78. bearcreekbat 2019-02-17

    Cory, that is an interesting question. It seems doubtful since the Constitution explicitly allocates the function of enforcing congressional acts (power) to the executive branch.

    Indeed, Andrew Jackson’s Trail of Tears taught us that the judicial branch cannot even enforce SCOTUS rulings declaring what the Constitution means nor how it limits the executive branch. Thus,it looks like a constitutional amendment would be necessary to expand the power of the judiciary to execute a law purporting to delegate appropriations authority to the SCOTUS.

    One odd aspect of the judicial power is the relative silence of the Constitution defining the extent of this power. Today we define that power based on Justice Marshall’s clever appropriation of power in his 1803 decision in Marbury v. Madison. Given the lack of specific language explaining the extent of, or limitation to, Article III judicial power, perhaps if we had a similar Marshall-style decision in the future holding that delegation of congressional power to the judiciary to be consistent with the Constitution, we could end up with a similar result. But the logic of Marbury seems missing in that scenerio.

  79. mike from iowa 2019-02-17

    Bear, are you saying all these years wingnuts claimed the Scotus was legislating from the bench ( even though Libs haven’t controlled it in decades) they were flat out pathological Drumpfing us? Liar, liar pants on fire Drumpfing?

  80. Cory Allen Heidelberger Post author | 2019-02-17

    Well, Bearcreekbat, you can see where I’m going: if the Constitution grants a certain power exclusively to Congress, and Congress passes a law passing that power to another branch, that law is unconstitutional. If the emergency-declaration law passes the power of appropriations to the Executive Branch, that law is unconstitutional… or at least, the President’s exercise of an emergency declaration to appropriate funds for purposes not authorized by Congress is unconstitutional.

  81. bearcreekbat 2019-02-17

    Cory, the concept of delegating power to the executive branch is somewhat of a misnomer. It would seem that any delegation of express power by Congress indeed would be inconsistent with the Constitution.

    The rationale, however, for permitting what we have called a “delegation” of power to the executive branch focuses on the need to carry out the intent of legislation, rather than permitting the executive to independently exercise congressional power. The idea is that our world is way too complex for micromanagement by Congress. Hence, there is a need to permit the executive to make spending decisions or enact legally binding regulations that only work to carry out congressional intent. And as noted earlier, the executive is supposed to be guided by clear statutory guidelines and limitations, although as a practical matter the watered down Mistretta test for unlawful delegation makes it difficult for a court to enforce this requirement.

    Here I suppose the President will argue that Congress already appropriated the funds he is using, and that he is simply carrying out congressional intent to address any “emergency” that arises under the 1975 law authorizing the declaration of an emergency. In other words, based on the 1975 law and related provisions, he will argue that these funds were indeed appropriated for essentially multiple uses, namely either the original use or to address any emergency.

    As noted earlier, I haven’t seen much written consistent with my analysis so it will be very interesting to see how the lower courts analyze the constitutional issues in litigation.

    PBS reports three arguments: (1) whether there is in fact an emergency; (2) whether this is a power grab because Congress has recently denied a Presidential request for wall funding; and (3) as it relates to statutory compliance, “Does the military construction statute allow for a wall?”

    https://www.pbs.org/newshour/politics/how-trumps-national-emergency-could-be-challenged-in-court

    I predict that if the courts focus on the factual issue whether there is, in fact, an emergency, Trump loses. If the courts decide to defer to Trump’s judgment that there is an emergency, subject to congressional review, then I doubt that a “power grab” argument will succeed. But if the courts find that Trump has violated a statutory requirement or restriction regarding the use of specific funds during an emergency declaration, then the challenge may well succeed.

    mfi, I would agree that often such arguments look a lot like gaslighting. It seems more likely, however, that most folks simply don’t understand the judicial decision making process and assume (with the help of provocateurs like Limbaugh, Hannity, et al) that any decision they disagree with must constitute legislating from the bench.

  82. mike from iowa 2019-02-17

    Glad you mentioned Rust Limpaw, bcb. Chris Wallace called him a hypocrite to his face because he has done no screaming about Drumpf’s abuse of executive power as he did when Obama ruled the world. :)

  83. Cory Allen Heidelberger Post author | 2019-02-18

    Intent seems key there, BCB. Congress intended for the President to respond to emergencies, but it also very explicitly, over the last two years within hours of Trump’s declaration, said it has no intent to fund a border wall.

  84. bearcreekbat 2019-02-18

    Exactly, Cory. Courts look for the intent of Congress in deciding what a statute means and whether challenged government action is consistent with that intent.

    Typically, more conservative judges, such as Scalia and like thinkers, claim to rely only of the statutory language to glean intent. Often more liberal judges, however, look also to legislative history and any other meaningful indicia of congressional intent. The current rule seems to be that a court may look beyond the plain language of the statute for intent only when the plain language is ambiguous.

    And, mfi, many conservatives assert that looking beyond the plain language constitutes “legislating from the bench,” although such an assessment seems out of place since these judges are simply trying to accomplish what was intended by Congress.

  85. jerry 2019-02-22

    Military handed trump an anvil then showed him the pier and then laughed about it.

    “The Pentagon has asked Department of Homeland Security to identify locations where border wall construction would improve the “effectiveness” of military troops deployed there, a key justification required to redirect military construction spending that would otherwise go to local base projects.

    In a memo, dated Feb. 18, DoD asked DHS to identify “priorities for potential construction,” a U.S. official familiar with the memo’s contents told Military Times. Acting Defense Secretary Patrick Shanahan is asking for a priority list, as well as the data used to generate that priority list, to help him determine “what projects we support” and what could be delayed, the official said.” https://www.militarytimes.com/news/your-military/2019/02/21/dod-asks-dhs-for-data-to-justify-milcon-use-for-border-wall/

    For those who have never been in the military, this is something that could take decades to finally be determined…if then.

  86. Debbo 2019-02-22

    I love that Jerry! Thanks.

  87. jerry 2019-03-07

    Poison water for the troops. Here is a better way to spend a couple of billion bucks.

    “WASHINGTON — Cleaning up and protecting U.S. drinking water from a class of toxic chemicals used in many household items could cost in the tens of billions of dollars nationally, including $2 billion for the Department of Defense alone, witnesses testified Wednesday before a House panel urging the federal government to move more quickly on the cleanup.

    Rep. Harley Rouda, the California Democrat chairing the House Oversight and Reform environment subcommittee, told reporters after the hearing “it’s clear” the high costs were slowing any federal efforts to regulate and clean up the toxic chemicals, which are found in a range of goods, including nonstick pans, stain-resistant clothing, dental floss and food containers. They also are in firefighting foam used by the military to battle jet-fuel fires.” https://www.militarytimes.com/news/pentagon-congress/2019/03/07/2-billion-cost-to-clean-up-water-contamination-at-military-bases-defense-official-says/

  88. Debbo 2019-03-09

    Exactly right, Cory.

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