This would not be the ideal solution. However, Democrats are not willing to compromise at all, so this is an option. Yes, Trump has authority to declare national emergency for border wall By Jonathan Turley, opinion contributor — 01/08/19 Supreme Court Justice Joseph Story once marveled, “How easily men satisfy themselves that the Constitution is exactly what they wish it to be.” If Story returned to life today, he would find these to be familiar times, as politicians and pundits have decided that the Constitution bars an action by President Trump, even when they reached the diametrically opposite conclusion on similar actions taken by President Obama during his term. In the latest “constitutional crisis” declared on Capitol Hill, Democrats are adamant that they will not fund the signature pledge of Trump to build a border wall. In response, Trump has threatened to start construction unilaterally under his emergency powers if Congress refuses to yield to his demand for more than $5 billion. Critics turned to the Constitution and found clear authority against Trump. Representative Adam Schiff, Berkeley law school dean Erwin Chemerinsky, Yale law professor Bruce Ackerman, and many others denounced such a move as flagrantly unconstitutional. The concern is well founded even if the conclusion is not. Congress has refused the funds needed for the wall, so Trump is openly claiming the right to unilaterally order construction by declaring a national emergency. On its face, that order would undermine the core role of Congress in our system of checks and balances. I happen to agree that an emergency declaration to build the wall is unwise and unnecessary. However, the declaration is not unconstitutional. Schiff, now chairman of the House Intelligence Committee, insists that Trump “does not have the power to execute” this order because “if Harry Truman could not nationalize the steel industry during wartime, this president does not have the power to declare an emergency and build a multibillion dollar wall on the border.” The problem is Trump does have that power because Congress gave it to him. Schiff is referring to the historic case of Youngstown Sheet and Tube Company versus Charles Sawyer, in which the Supreme Court rejected the use of inherent executive powers by President Truman to seize steel mills during a labor dispute. He wanted to claim a national security emergency if steel production halted during the Korean War. In a powerful check on executive authority, the Supreme Court rejected his rationale for unilateral action. The Supreme Court was correct. But that was in 1952. More than two decades later, Congress expressly gave presidents the authority to declare such emergencies and act unilaterally. The 1976 National Emergencies Act gives presidents sweeping authority as well as allowance in federal regulations to declare an “immigration emergency” to deal with an “influx of aliens which either is of such magnitude or exhibits such other characteristics that effective administration of the immigration laws of the United States is beyond the existing capabilities” of immigration authorities “in the affected area or areas.” The basis for such an invocation generally includes the “likelihood of continued growth in the magnitude of the influx,” rising criminal activity, as well as high “demands on law enforcement agencies” and “other circumstances.” Democrats have not objected to use of this authority regularly by past presidents, including roughly 30 such emergencies that continue to this day. Other statutes afford additional emergency powers. Indeed, a report by the Congressional Research Service in 2007 stated, “Under the powers delegated by such statutes, the president may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.” Congress spent decades yielding authority to the executive branch. When it agreed with the president, such mighty authority was even celebrated. But now, consider the objections from Representative Joaquin Castro, chairman of the Congressional Hispanic Caucus. He has declared that it would be “profoundly inappropriate for the president of the United States to circumvent the legislative branch and single handedly, against the will of the American people and the American Congress, put up a wall.” This is a curious statement from one of many lawmakers who supported Obama when he openly circumvented Congress on immigration reforms. Obama ordered agencies to stop enforcing some federal laws and used executive orders to do precisely what Congress refused to do. When Obama declared in a State of the Union address that he would circumvent Congress if it failed to approve his immigration reforms, Democrats cheered at the notion of their own circumvention, if not obsolescence. Likewise, Castro and his colleagues supported Obama when he ordered the payment of billions out of the Treasury into ObamaCare, after being denied the funds by Congress. These same Democrats were largely silent when Obama attacked Libya without a declaration of war or legislative authorization. Obama funded the Libyan war out of money slushing around in the Pentagon, without a specific appropriation. I represented lawmakers who opposed the Libyan war. I also served as attorney for the entire House of Representatives in successfully opposing the ObamaCare payments. Most Democrats opposed both these lawsuits. Congress can act to stop circumvention under the National Emergencies Act. Trump must notify Congress of his declaration and detail the powers being claimed under that law. Congress could and should negate the declaration with a vote of both chambers. However, that does not make the declaration unconstitutional. Any declaration would create a myriad of legal issues and likely face an immediate legal challenge. Two questions that a court would have to consider are the source of the authority and the source of any funds. The latter is where some challenges could arise. Congress gave Trump such authority in the National Emergencies Act, augmenting claims of inherent authority, but the source of the funds could be more challenging. Under two laws in Title 10 and Title 33 of the United States Code, he could seek to use unobligated funds originally set aside for military construction projects, or divert funds from Army civil works projects. There are limitations on the use of such money, and there could be strong challenges to the use of unobligated funds in other areas. There is money there to start but not nearly enough to finish such a wall without proper appropriation. Recall Obama funded the undeclared war in Libya out of money slushing around in the Pentagon, without the new strict constitutionalists objecting from the Democratic side of the aisle. Courts generally have deferred to the judgments of presidents on the basis for such national emergencies, and dozens of such declarations have been made without serious judicial review. Indeed, many of the very same politicians and pundits declared the various travel ban orders to be facially unconstitutional, but the Supreme Court ultimately lifted the injunctions of lower courts. Moreover, Trump does not have to ultimately prevail to achieve part of his objective. Even if a court were to enjoin construction, the declaration could afford Trump the political cover to end the government shutdown, as the issue moved its way through the courts. While the matter could be expedited to move through the courts in a matter of months, the government could seek to slow litigation to push any final decision into 2020. There are compelling arguments against funding the entire wall demanded by Trump, although some added border barriers clearly are warranted. However, one can oppose an emergency declaration without claiming that it is facially unconstitutional. It is not. Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He served as counsel for members opposing United States involvement in the Libyan war and as attorney for the House of Representatives in their challenge to the unappropriated use of federal funds under ObamaCare. You can follow him on Twitter @JonathanTurley. https://thehill.com/opinion/judicia...to-declare-national-emergency-for-border-wall
Its gonna happen. And the turtle is on board. Trump will sign border bill, McConnell says, and declare national emergency JOHN PARKINSON Thursday, February 14, 2019 12:40PM In a surprise development Thursday, Senate Majority Leader Mitch McConnell announced on the Senate floor that President Donald Trump told him he would sign a border security funding bill that would avert a government shutdown, but also would declare a national emergency in order to get more funding for his proposed border wall. McConnell's announcement came just before a Senate vote on the measure, which the House is scheduled to vote on Thursday evening. Many Republicans, including McConnell, had advised the president against declaring a national emergency. A few minutes later, Minority Leader Chuck Schumer responded to word that Trump would declare a national emergency, saying, "I hope he won't. That would be a very wrong thing to do." Shortly after Schumer spoke, White House press secretary Sarah Sanders confirmed that Trump would make the moves. "President Trump will sign the government funding bill, and as he has stated before, he will also take other executive action - including a national emergency - to ensure we stop the national security and humanitarian crisis at the border," Sanders said in a statement. "The President is once again delivering on his promise to build the wall, protect the border, and secure our great country." Trump had previously said he was reserving judgment on whether he'll sign the measure until he sees the final text, though the president has indicated he was warming to the deal after receiving a briefing Tuesday on its parameters from Sen. Richard Shelby, the top Republican negotiating on behalf of his party. "We're looking for landmines," Trump told reporters in the Oval Office on Wednesday. "A shutdown would be a terrible thing. I think a point was made with the last shutdown. People realized how bad the border is, how unsafe the border is and I think a lot of good points were made, but I don't want to see another one." While the bill includes $1.375 billion for 55 miles of new physical barriers, it doesn't include funds for the "big, beautiful wall" prototypes the president touted on the campaign trail. In remarks to the Major County Sheriffs and Mayor Cities Chiefs Association Joint Conference in Washington, Trump again played up how much work has already been done towards building the wall he promised to supporters, at one point riffing that a person would have to "be able to climb Mount Everest" to be able to get through the barriers being built. "It's a big wall. It's a strong wall," Trump said. "It's a wall the people aren't going through very easy. You'd have to be in extremely good shape to get over this one. They would be able to climb Mount Everest a lot easier, I think." The president initially said he was "not happy" with the deal but Senate Majority Leader Mitch McConnell encouraged Trump to sign it, adding he supports the president taking executive action to "make up the difference" by utilizing "whatever tools he can legally use to enhance his efforts to secure the border." As a Friday midnight deadline rapidly approached to stave off another partial government shutdown, lawmakers were seeking political cover from an agreement nobody seems all that excited to support. House Speaker Nancy Pelosi called the deal "a compromise" and "a win for the American people." "I'm proud of the work they've done but as with all compromises, I say to people, support the bill for what is in it, don't judge it for what is not in it," Pelosi told reporters Wednesday in the Capitol. "We have other days to pass other legislation." The U.S. Senate is expected to debate and vote on the legislation first, before sending the bill to the House for consideration Thursday evening. Negotiations hit a new snag Wednesday over a push by Democrats to include back pay for thousands of federal contractors hit by last month's shutdown, as the White House signaled the president would likely reject the agreement if back pay were included. That issue will have to wait for another day as none of the extenders made it into the final bill after no agreement could be reached on the inclusion of a handful of items. That includes an extension of the Violence Against Women Act, back pay for federal contractors unpaid during the 35-day shutdown and emergency disaster relief for areas recovering from wildfires and hurricanes last year. Democrats had long insisted that they would not support even one dollar for the president's border wall, but the bipartisan pact includes $1.375 billion to build a physical barrier on the southern border - enough to construct about 55 miles of new fencing in new geographic areas. While that's even less than the $1.6 billion that Trump first rejected in December, triggering the record long 35-day government shutdown, Democrats have found solace that the sum is a far cry from the $5.7 billion Trump had demanded. "This legislation is a product of trying to find common ground," House Democratic Caucus chairman Hakeem Jeffries, D-N.Y., told ABC News. "We made clear from the beginning that we would not support funding for a medieval border wall that would be built from sea to shining sea. We also indicated that we were prepared to support evidence-based barriers where necessary." "The conference committee has come together and concluded that it is reasonable to support 55 miles of additional barrier in a manner that is consistent with our evidence-based approach to find common ground and improve the security along our border," Jeffries said. The agreement prohibits the construction of a concrete wall or other Trump wall prototypes - specifying that only "existing technologies" for border barriers can be built - including bollard and steel slats barriers -- the same style of structures that were built along the border before Trump took office. "It's abundantly clear that this is not the $5.7 billion for the president's concrete wall," New Mexico Democrat Ben Ray Lujan said. "There's not any money for the president's concrete wall in here as I understand it." Rep. Kay Granger, the ranking Republican appropriator, boasted Wednesday morning that the deal authorizes structures 30-feet high consisting of steel filled with concrete and claiming the fence the bill outlines is the wall the president wants. "The fence that the president outlined in his State of the Union, the fence, we call it the wall, the most important by far, it's steel packed with concrete. It's in some areas 30 feet high. Other areas 18 feet high," Granger, R-Texas, said. "It absolutely is what we need to slow down, have the technology in that wall to make sure the border patrol can get there as quickly as possible and stop them from coming across. It can't be driven through, it can't be cut through so it's certainly the one we need." The framework also reduces the average number of ICE detention beds funded each day from 49,057 today to 40,520 at the end of the fiscal year September 30, representing a 17.4 percent reduction that Democrats believe will provide a critical check on the Trump administration's "mass deportation agenda." Appropriators agreed fund the daily average at 45,274 for the FY2019, but in order for the administration to avoid running out of congressionally authorized funds codified in this deal before the end of the fiscal year, that daily average will need to decrease to 40K by September 30 - or else ICE would need to pull funds from elsewhere to maintain a higher population. "You've got good and bad in there. We've got to judge the good over the bad side of it," Rep. Mark Pocan, the co-chair of the Congressional Progressive Caucus said. "There's good and bad in every deal, but this allows us to move on with all the other priorities we want to move on with." In addition to homeland security appropriations, Rep. Tom Cole, second-ranking GOP appropriator, claimed victory in that the bill will also cover six other areas of government funding that all lapsed during the shutdown. "We're getting everything we wanted and the Democratic House is voting for it," Cole, an Oklahoma Republican, said. Both chambers must then vote to send it to the president's desk by midnight Friday. ABC News' Ben Siegel and Sarah Kolinovsky contributed to this report.
Don't be surprised to see the next Democratic president to declare a national emergency after a mass shooting to confiscate your guns. The demographics don't favor Whitey and those guns are going bye bye, it's only a matter of time.
I didn't like your post because i like it, but it is absolutely true, and it won't stop with guns. Can anyone say climate change national emergency. Hell we have people saying the world is on the brink of disaster and will end by 2030. If that's not a national emergency i don't know what is. Sorry folks we have to go back living like it's 1800. It's the only way we can save the earth. Oh, hate speech is a national emergency too. The thought and speech police will be monitoring all communication. Just insert whatever crazy thing and run with it. And what do we get for this great deal being hashed out? A fence that has a dozen restrictions as to where it can be built and god only knows how much bullshit is buried in those 1100 pages which no one has read. Master deal maker? Errrrr, not so much
So he's going to "negotiate" his way to zero $ now that the dems won't be willing to sign the deal at the House and the courts will laugh him out of the building?
One of the things that is treacherous for the dems is that they have to/counter this national emergency thing bigtime and with full force in the courts. Arguing that the power of the chief executive is limited and subject to the will of congress, blah, blah, blah, some of it also being true. Then before long, they have to pivot and go before the Court again to argue that Obama had total authority- even authority that cannot now be reversed- to issue an executive order directly declaring that duly enacted laws of congress would not be enforced and that the violators could rely upon that as the law of the land until he changed his mind, if at all. Not any easy pivot to make. Even CNN's lefty legal pundit, Jeffery Turbin or some name like that, went off the reservation and said that he thought that Trump would win on DACA if it is not settled before the Court takes it- most likely in the fall- or at least allows it on to the docket for that session. The dems may not care if they think they are going to win in 2020 because they can fix it by statute. A lot of "ifs" there.
A President declaring a national emergency would not override the 2nd Amendment. Sorry, thanks for playing. Border wall does not equate with the Constitution.
Just the handguns and assault rifles, which is way more important and life saving than the wall. It's not even close. And it would keep the 2nd.