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Trump Border Emergency Proclamation: There is no constitutional crisis and Trump is likely to win

Trump Border Emergency Proclamation: There is no constitutional crisis and Trump is likely to win

Get a grip. A president is taking action under a statute, and there will be litigation over it, just like the gazillion prior times that has happened.

The hysteria over Donald Trump’s National Emergency Proclamation with regard to the Mexican border is peak stupid even by the standards of the times, in which almost everything Trump does is portrayed with cataclysmic predictions.

This time around, it’s not just the usual Democrat and media suspects, but also some Republican Senators who worry that Trump is setting a precedent for a future Democrat president to use the National Emergencies Act to spend money for climate change or other perceived liberal emergencies.

Other conservatives claim Trump is violating the separation of powers in the Constitution, and usurping the role of Congress in authorizing spending. Chris Wallace, interviewing Rush Limbaugh, suggested that Trump’s National Emergency Proclamation was the equivalent of Obama’s DACA and other immigration unilateral action and that if you condemned Obama, you can’t justify what Trump is doing.

We’re told it’s “a contemptuous document. It’s the proclamation of a monarch,” a “dictator move” that is “forcing a constitutional crisis” and “the damage to the constitution is likely to last for generations.” As if that wasn’t enough, it’s a “threat to the rule of law” and “an attack on democracy.”

The  reality of the Trump emergency proclamation is quite different than as portrayed. Trump is using a statute Congress passed, the National Emergencies Act, which provides that the president can declare an emergency (which is not defined in the statute). There are currently 31 active National Emergencies, and 58 national emergencies have been declared, most of which don’t sound like “national emergencies” in any real sense.

The National Emergencies Act enables the president, among other things, to spend money already authorized by Congress under statutes that provide for use of such funds when a national emergency is declared.

A politically neutral analysis at the Lawfare Blog by Scott Anderson and Margaret Taylor explains how the use of this statutory authority works. It’s not unrestrained power by any means, and certainly does not even purport to supplant the constitutional order. Rather, the spending is relatively narrow and allowable only to the extent there is a specific congressional authorization in the statutes relied upon.

It is not nearly the equivalent of what Obama did on immigration. Obama implemented executive policies which directly contravened existing legislation and created a new class of persons, found nowhere in the immigration laws, who were immune from deportation because Obama said so. Trump, by contrast, is not contravening any law, nor is he usurping Congress’s control over spending authorization.

It also sets very narrow precedent. In order for a future president to do what Trump is doing but as to climate change, the president would have to find statutes where Congress already has authorized spending in an emergency on matters related to climate change. I understand that some Republican Senators genuinely are concerned about presidential powers under the National Emergencies Act. The remedy for that is to amend the Act or rescind it altogether.

One can disagree as to whether there is an “emergency” as that term is used in a catastrophic sense, but that is not what the statute requires. Professor Jonathan Turley explains, Why Trump will win the wall fight:

Presidents have long declared emergencies based on their inherent executive authority. The use of that authority produced some conflicts with Congress, the most famous seen in the case of Youngstown Sheet & Tube Company versus Charles Sawyer, in which the Supreme Court declared that the federal seizure of steel mills during the Korean War was unconstitutional because Congress had never granted President Truman that authority.

However, Congress later gave presidents sweeping authority under the National Emergencies Act of 1976. While this law allows for a legislative override by Congress, the authority to declare national emergencies is basically unfettered. It is one of many such laws where Congress created the thin veneer of a process for presidential power that, in reality, was a virtual blank slate. At the same time, Congress has continued to give the executive branch billions of dollars with few conditions or limitations….

Democrats insist Trump can be challenged on his use of emergency authority since they do not believe an emergency exists on the southern border. They will fail spectacularly if the case gets to the Supreme Court. While the source of funding can be challenged, there is no compelling basis to challenge the national emergency declaration.

Harvard Law Professor Jack Goldsmith further explains:

Trump’s actions have been greeted with now-familiar claims that he is sparking a constitutional crisis or threatening the rule of law.

Considering just the substance of what Trump has done, these are large exaggerations. Everything Trump proposes to do purports to be grounded in congressional statutes and much of what he aims to do does not rely on emergency power. Trump is not relying solely on Article II executive power, and he is not invoking executive power to disregard a congressional statute. Moreover, the statutes in question expressly give Trump authority in the areas in which he claims them.

There will be questions—some of them hard, and without obvious answers—about whether Trump’s legal team has interpreted these congressional authorizations, and the conditions on their use, accurately…. The executive branch every day relies on vague or broad or dim delegations of authority, and courts usually uphold these actions. And as Trump himself stated many times, courts will ultimately sort out his claimed statutory authority in the wall context as well.

Nor is Trump’s claim of emergency power outlandish—at least by the standards of past presidential practice. Many charge that Trump is declaring an emergency when there is no emergency. But this begs all the relevant questions. The relevant statute on which Trump relies does not define the term “emergency.” Presidents have always—really, always—had discretion to decide if there’s an emergency. And presidents have often declared emergencies under circumstances short of necessity, to address a problem that does not rise to an “emergency” as defined in common parlance to mean “a serious, unexpected, and often dangerous situation requiring immediate action.”

There is no threat to the rule of law. To the contrary, Trump is utilizing powers Congress expressly gave to the president in the way Congress intended. Maybe you think that’s bad policy for Congress, but as Prof. Josh Blackmun points out, “Congress cannot claim that the president is subverting the rule of law when it gives him the precise authority he needs to accomplish his goal.”

The claim that Trump has admitted that there is no emergency because of his statements at his press conference does not negate his discretion legally, or factually. The statement “I didn’t need to do this” is plucked out of both the sentence and the context. He said he could build a wall over time without this declaration, but that he wanted to do it faster. Because the situation is an emergency. Plucking a few words out of context may make for a Twitter legal victory, but I don’t think it will make for a court victory in the end at the Supreme Court.

It’s possible to disagree with something Trump does without losing your own mind. Really, it’s possible, it just seems impossible for some.

There is no constitutional crisis. There is no dictatorship. There is no monarchy. Get a grip.

A president is taking action under a statute, the courts will determine if that action is authorized by the statute or inherent presidential powers, and we’ll survive. Just as we survived the Travel Order, where #TheResistance lost not only it’s s–t, but also the court case in the Supreme Court.


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” almost everything Trump does is portrayed with cataclysmic predictions…”

Except by 52% or more of the American electoate.

The Swamp attempted coup continues, enabled by the most sinister, corrupt media since the days of Hitler and Stalin.

    Absolutely true … but OTOH … Trump amps up most everything he says. Even when he’s right the way he presents himself he’s kinda asking for blow back. Granted … no matter what he does he’ll get flack from the media … so the guy just can’t win.

      RedEchos in reply to PODKen. | February 18, 2019 at 11:00 pm

      Trump knows the media better than they know themselves.

      Sometimes (often) his tweets have typos that the media gleefully reports, not realizing they’re bringing his actual message to the fore. He does it on purpose and they keep falling for it.

      When he was fact-checked after the Oval Office speech they tried to nail him on the “one-in-three women are sexually assaulted” line saying he was wrong; it was actually closer to two-in-three.

      They can’t help themselves, and that’s why they keep ending up with egg on their faces

the courts will determine if that action is authorized by the statute or inherent presidential powers

However it works out this time around, this remains a serious problem in general. It is a perversion of the American Experiment to give any unelected person lifetime authority to do anything like this. Even a dictator of the Roman Republic served only for a strictly limited time.

    Milhouse in reply to tom_swift. | February 18, 2019 at 1:35 am

    No, it is the judicial branch’s job to say what the law is. But here there is no question of law to decide. The statute expressly gives the president the authority to declare emergencies. Legally, an emergency is whatever the president of the day says it is. He needs no rationale. Whether there really is an emergency is a matter for his sole judgment; no court has the authority to even consider the question.

      tom_swift in reply to Milhouse. | February 18, 2019 at 2:49 am

      No, it is the judicial branch’s job to say what the law is.

      A very common misconception. The Constitution assigns no such extraordinary power to the judiciary. Art III Sec 2 specifies the extents of “judicial Power” and fanciful interpretation of the law isn’t among the enumerated items.

        artichoke in reply to tom_swift. | February 18, 2019 at 11:40 am

        They decided in Marbury v Madison that they have this power. Cute, eh? On such a slender reed rests the entire relationship of the Congress and the Executive to the Courts. Pretty bogus, eh? Nobody else has figured out a more reasonable way to make separation of powers work though, as far as I know.

      It’s a power they have bootstrap assigned themselves, and a problematic one.


      Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.[14]

      It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgement, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

      You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps … Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

        Outstanding. The Constitution means what it says. It is not a list of suggestions. The only issue for the judges is whether a law violates what the constitution says.

        In the end, there is no mechanism for the courts to enforce their will. Ultimately, the other branches have the power to challenge or disobey court orders should they be so offensive to the public order. Andrew Jackson prevented a civil war by ignoring the Supreme Court and pointing out that if they feel so strongly about their opinion, they should enforce it themselves.

        It seems to me that this is the fine line the new Deep State establishment is relying on to succeed in their coup. We just had a tremendously popular rejection by the people of open borders. If Deep State is going to ignore the Constitution that establishes any confidence that there is justice in following the law and make their own arbitrary laws, what is stopping the people from doing the same? How long before they push things over the tipping point? That is why they are coming after our guns. There is no gun crisis. It just makes a tipping point less risky for them.

        snopercod in reply to rdm. | February 18, 2019 at 10:22 am

        Sadly, the meaning of “the law” has changed since the founding. It used to mean “fundamental principles agreed upon and applying to all members of a free society”; Now it means “whatever congress or a judge says”. As Hayek pointed out in Law, Legislation, and Liberty, Chapter 5:

        To appreciate the significance of [the role of judges in society] it is necessary to free ourselves wholly from the erroneous conception that there can be first a society which then gives itself laws. This erroneous conception is basic to the constructivist rationalism which from Descartes and Hobbes through Rousseau and Bentham down to contemporary logical positivism has blinded students to the true relationship between law and government. It is only as a result of individuals observing certain common rules that a group of men can live together in those orderly relations which we call a society. It would therefore probably be nearer the truth if we inverted the plausible and widely held idea that law derives from authority and rather thought of all authority as deriving from law – not in the sense that the law appoints authority, but in the sense that authority commands obedience because (and so long as) is enforces a law presumed to exist independently of it and resting on a diffused opinion of what is right. Not all law can therefore be the product of legislation; but power to legislate presupposed the recognition of some common rules; and such rules which underlie the power to legislate may also limit that power. No group is likely to agree on articulated rules unless its members already hold opinions that coincide in some degree. Such coincidence of opinion will thus have to precede explicit agreement on articulated rules of just conduct, although not agreement on particular ends of action. Persons differing in their general values may occasionally agree on, and effectively collaborate for, the achievement of particular concrete purposes. But such agreement on particular ends will never suffice for forming that lasting order which we call a society.

        artichoke in reply to rdm. | February 18, 2019 at 11:41 am

        (Hamilton) the power of the people, as expressed in the Constitution!? Really??? The people were locked out of the Constitutional Convention, armed guards were stationed, curtains drawn shut.

        Hamilton was an ass.

      Mihouse is essentially correct here. This is a matter committed to the other branches of government to resolve, the executive and legislature. There is a statutory process for Congress to object. The courts lack the power or institutional competence to intervene in these policy matters.

      bhwms in reply to Milhouse. | February 18, 2019 at 7:36 pm

      I’m not downvoting – I also disagree with what you said about the role of the Judiciary.

      But I agree with the rest of what you said.

    Close The Fed in reply to tom_swift. | February 18, 2019 at 8:14 am

    Since the hell when is it a PROBLEM for the President of these United States to defend our border from TENS OF THOUSANDS, EVEN MILLIONS, of INVADERS?????!!!!!!

    Whenever it became a “problem” is when our country changed to a SUICIDE PACT.

Connivin Caniff | February 17, 2019 at 10:20 pm

The legal remedy in this case is expressly a legislative override by Congress. Therefore jurisdiction is in the Congress, not the courts, and a case is not even ripe for court adjudication until there is an actual Congressional vote.

Every time a liberal opens their mouth is more evidence that liberalism is a mental disorder. Mental instability is justification to remove them from the voter rolls. Liberals outright dishonesty is another reason to deny them voting rights! Trump Derangement Syndrome (TDS)is another reason their citizenship should be suspended!

If they prevail somehow in overriding this declaration, the Trump administration should REFUSE to reauthorize any of the outstanding Emergencies that have been declared and renewed every six months.

    Milhouse in reply to RobM. | February 18, 2019 at 1:36 am

    No. If they “succeed” in having a court purport to override this declaration the president should simply ignore it. Or, if you will, “override” the “overriding”.

      Well, I guess that would be interesting. When exactly, in American history, has that worked out successfully for a President?

It used to be that conservatives were FOR separation of powers and AGAINST an overweening executive.

That was only a few years ago.

It used to be that words meant something.

That was only a few years ago.

All legalistic gnat-straining aside, what T-rump has done is indefensible and anti-Constitutional. Even worse, it was always unnecessary.

    Ragspierre in reply to Ragspierre. | February 18, 2019 at 12:53 am

    I’m WELL to the right of Duh Donald on immigration, and have been for decades.

    RedEchos in reply to Ragspierre. | February 18, 2019 at 12:59 am

    No insults, please. Disagree on the merits of his comments

    RedEchos in reply to Ragspierre. | February 18, 2019 at 1:13 am

    “All legalistic gnat-straining aside, what T-rump has done is indefensible and anti-Constitutional. Even worse, it was always unnecessary.”

    Indefensible: How? Starride has put up quite defensible numbers and those do not even touch upon the strain illegals place on our schooling, medical, and criminal justice systems.

    Anti-Constitutional: The professor just explained why this is, in fact, constitutional. You may think it’s unwise but that’s a different matter.

    Unnecessary: Politically it IS necessary, now. If Congress would pass mandatory E-verify (with teeth) then it would have been unnecessary years ago. The insane ‘catch and release’ coupled with insufficient judges have created an economic crisis. Congress had many, many ways (and years) to make this “unnecesary.” Trump cannot change the law so he takes the steps he can, legally.

    In what way are you to the right of Donald Trump on immigration? What has he called for that you disagree with?

      txvet2 in reply to RedEchos. | February 18, 2019 at 11:44 am

      “”If Congress would pass mandatory E-verify (with teeth) then it would have been unnecessary years ago.””

      And once again, if in addition we simply denied any welfare or other government benefits to illegals, the problem would virtually disappear overnight as most of them self-deported back to wherever they came from. We still need the workers, but we need to return to the time when they came for the harvest and returned home thereafter. Loose welfare rules (thanks to a Texas Democrat) changed all of that.

    Milhouse in reply to Ragspierre. | February 18, 2019 at 1:38 am

    Conservatives are for the separation of powers. That is precisely why the judiciary must not be allowed to intrude on a matter that the congress has specifically put in the president’s hands, and that doesn’t involve any question of law.

    Are you still camped out at a poll, waiting to vote for hillary clinton?

    Colonel Travis in reply to Ragspierre. | February 18, 2019 at 2:10 am

    Can you explain this other than your say-so? Rhetorical question. When it comes to Trump, nothing fuels you but irrational rage. You can’t even type his name without imitating a third-grader.

    Not this hill, not this time. You, ah, adult conservatives never seem to spot those hills and times.

    You live in a state that is flushing billions of dollars down the toilet because of illegals. Let me know when you feel like dealing with it.

    You can reach me at [email protected].

    By ‘legalistic gnat straining’ you mean ‘the actual wording and content of the law”?

    I didn’t think even 30 people read the comments section. Already 29 “down twinkles”…. Just sayin’.

    JusticeDelivered in reply to Ragspierre. | February 18, 2019 at 12:13 pm

    Rags-Rump, your position is not credible. Better qualified people have addressed the issue. We all understand that you suffer from blind hatred for Trump, TDS seems to be common subset of LPS (little Person Syndrome), probably in large part because Trumps is smarter, wealthier, and more powerful 🙂

    Watching Trump wind up TDS/LPS types has been a very entertaining side effect of Trump’s fabulous presidency.

    gwsjr425 in reply to Ragspierre. | February 19, 2019 at 11:06 am

    The authority for Trump to declare an emergency was passed thru congress and signed into law just like the Constitution dictates how laws are passed.

    This is basic stuff.

This is yet another case where Trump will make a grave mistake in trying to defend his declaration in court.

What he should do but won’t is to reply to the lawsuit with a letter informing the court that since it has no authority to even consider the question of whether there really is an emergency, he is forbidding DOJ from making a response, and that should the court purport to make an order it will be ultra vires and he will accordingly ignore it.

CC to the Supreme Court, courteously informing it that one of the judges under its supervision has strayed off the reservation and politely requesting that it restore order to its branch of government.

    Like I said, it would certainly be amusing. But wouldn’t this turn this into the constitutional crisis that it isn’t? I tend to think you are not being really serious here.

1. What happened to Starride’s comment????

2. While I share Ragspierre’ disdain for a president’s doing administratively what Congress has actively refused to give him, we actually have an example of a powerful member of Congress who looked quite favorably upon that very thing happening. From a May 22, 2014 article,

Sen. Chuck Schumer, D-N.Y., said,”If they don’t pass immigration reform, then the president will have no choice but to act on his own… If the president has to act, the only blame will fall on the shoulders of House Republicans.”

3. Trump’s taking action that he in good faith believes is necessary for the safety of Americans pursuant to existing statutes is not a problem. The problems are that (i) Congress has long overly-delegated its power to administrative agencies (all of whom serve under the President), and (ii) when it comes to the border wall issue, Congress has irresponsibly acted against the safety of Americans.

    starride in reply to Ira. | February 18, 2019 at 8:32 am

    Ira, I was sent to purgatory for simply calling a spade a spade. that’s twice now, I am pretty much done with LI. It is not worth the effort.

    RedEchos in reply to Ira. | February 18, 2019 at 2:03 pm

    I saw it also right before it was deleted. He had a good post then got vulgar in an attack upon Ragspierre. There is nothing in his current post to warrant a personal attack.

      JusticeDelivered in reply to RedEchos. | February 18, 2019 at 10:22 pm

      Don’t you think that Rags should do some penance for the shear number of petty juvenile insults he has thrown out over a rather long time? He has been rather obnoxious, though I agree he has improved. The question is, has he actually learned to stop his obnoxious behavior, or is he just temporally laying low?

        Some of my discussions with Ragspierre have been deleted. He has been vitriolic in the past but if the professor chooses to keep him around, well it’s his blog.

        Ragspierre has strong opinions and is obviously ‘Never Trump’ but he has a right to express himself. He has toned down the personal attacks on other posters this past month. Others should too. Or do we really want Ragspierre to be the only adult in the conversation?

Funny how the left and the GOPe thought obama’s executive orders and unaccountable ‘czars’ were so palatable.

We are so, so fortunate Donald Trump is in the driver’s seat.

Now, of we could just kick mcconnell out the car. While it’s moving.

“There is no constitutional crisis. There is no dictatorship. There is no monarchy….”

There would have been if Trump didn’t win the election, and corrupt traitor hillary clinton did.

We came that close.

DINORightMarie | February 18, 2019 at 3:07 am

I believe that Trump’s lawyers and advisors have examined all of what you outline and have come to the same conclusions – this is legal, within the bounds of the Act AND the laws on the books, and that he will win ultimately in the courts. It is clear from the Rose Garden comments that Trump expects this to be settled in the courts, and that he will build what he can with the funds he has available while the courts sort this out.

My question is – what law or statute could support Nancy’s assertion of a future Dem president taking away the 2A using this Act?! Yes, we already have precedent under Obama of illegal executive overreach, of creating a “national emergency” in direct violation of laws on the books (immigration laws ignored, or nullified) but the 2A, a Constitutional right listed n the Bill of Rights?! Do they really believe they can do that without courts crushing it?! Do they believe they can use a law passed by Congress to amend the Constitution?! Obama ignored court rulings throughout his regime…….maybe they plan to do that in future, and actually DO believe they can undermine and nullify the Constitution without amending it.

Perhaps Nancy just showed their hand……unforced error. Take note!

    DINORightMarie in reply to DINORightMarie. | February 18, 2019 at 3:07 am


    Quick answer, the only way the Executive can subvert Americans’ Constitutional rights is by declaring martial law. Emergency declarations are very limited and cannot come close to subverting any aspect of the Constitution, including the Second Amendment. Martial law, too, has its limitations, but it does enable a suspension of things like habeus corpus and the Second (see New Orleans in the wake of Katrina).

    I wouldn’t put it past today’s Socialist Democrats thinking that an emergency declaration and martial law are equivalent, but we are a long way from having to worry about a Democrat president declaring martial law to combat gun violence or whatever. The biggest deterrent, the one they want to eliminate? The Second Amendment. As long as we armed, we don’t have to worry about this; if we allow ourselves to be disarmed, all bets are off. That’s one reason I see protecting the Second as so incredibly important. Vital. No, we are no match for a government with nukes, but at the same time, the absolute disaster of attempting to subdue an armed population through force is something only the most radical leftist loons are willing to contemplate.

      JusticeDelivered in reply to Fuzzy Slippers. | February 18, 2019 at 12:25 pm

      Which raises the issue, could martial law be used to expel all the illegals?

      Most certainly talking about that possibility would draw attention from building the wall. It would give Democrats a new crisis to get worked up about.

    No, a provision of the Constitution cannot be annulled by a NED. NEDs are authorized by law. Laws are subject to the Constitution, and there is nothing in that instrument allowing for a law to nullify the Constitution or any part of it.

Now we will have a judge in Hawaii rule that Trump’s order about the border is unconstitutional.

“It’s possible to disagree with something Trump does without losing your own mind.”

For mentally healthy people anyway.

Hissies-R-Us is at it, again.

We care about the Constitution, and as a matter of course, cite the relevant law. They don’t.

Excellent analysis, Professor. Thank you.

The Republicans worried that a future Dem POTUS would also use National Emergency to outlaw guns etc. is Looney Tunes of the first order. Dems would use it at the drop of a hat even if the Republicans vowed they would never do such a thing. “I have my phone and I have my pen” was the popular phrase a few years ago.

    Miles in reply to Hawk. | February 19, 2019 at 5:32 am

    I don’t think any Republicans were, or are, worried about a future demoncrap President using a NED to ban guns. It was Pelosi and Nadler opening their yaps fear-mongering.

    Another brilliant display of just how stupid they are.

I’m of a few minds on this. I’m of the feeling that there is a constitutional crisis here, but it is of Congress’ making, rather than the President’s.

His actions appear consistent with the law, but the underlying law itself appears to be a mechanism expressly designed to shift accountability from Congress to the President, by shifting partial power of the purse to the President. That, to me, creates a risky concentration of power, that should not be allowed.

Separately, I’m deeply disappointed in the Republicans on the border committee. I expected the Democrats to be lying to us, but for the Republicans to come out of that without even an expert proposal that the Democrats had rejected? That says they did not even try to do anything. The whole committee, and by extension, the whole Congress was worse than useless.

That is how nations die. That is how you get the national barber shaving heads by the dozen. It is an insult to the entire country that they thought that was acceptable.