The topic of discussion for this
Constitution Monday concerns the national emergency on the southern border.
President Donald Trump claims that there is an emergency on the border, but the
Democrats in Congress plus a few rogue Republicans say there is not. Trump
declared a national emergency, and both Houses of Congress passed a joint resolution trying to overturn Trump’s declaration.
The Democrat-controlled House of
Representatives pass the resolution last month with a vote of 245-182, and the
Republican-controlled Senate passed it last week with a 59-41 vote. There were
twelve Republicans who joined the Democrats to go against the President.
The trouble with the joint
resolution is that it must be signed by Trump to become effective, and he says
that he will veto it. “I’ll do a veto. It’s not going to be overturned. It’s a
border security vote.”
There are thousands of people
pouring over the southern border in an invasion of a sovereign nation. Yet
Democrats refuse to admit that there is a problem and refused to fund a border
wall. Senator Ted Cruz (R-Texas) said that the vote was difficult because there
is a legitimate concern about the emergency powers that Congress has granted to
the President over the past fifty years. He ultimately voted against the
resolution because the vote was addressing a border crisis. “We cannot end this
emergency without securing our southern border, and we cannot secure our border without building a wall.
Senator John Cornyn (R-Texas) put my
thoughts into words, “When your negotiating partners refuse to take a seat at
the table, normal goes out the window. Our colleagues across the aisle left the
president with few options to fund what he believed were so important for the
nation’s security, and that’s what led us to this situation.”
If the Democrats – under the
direction of Nancy Pelosi and Chuck Schumer – would have negotiated in good
faith, they would have approved funding for a barrier on the border. They
obviously do not want a barrier of any kind – whether it be a fence or a wall –
that would stop potential voters from coming into the nation.
There are numerous attorney generals
who claim that Trump has authority to declare a national emergency, while there
are others who claim that he does not. This site seems to say that he can.
§1621. Declaration of national emergency
by President; publication in Federal Register; effect on other laws;
superseding legislation
(a) With respect to Acts of Congress authorizing the exercise, during
the period of a national emergency, of any special or extraordinary power, the
President is authorized to declare such national emergency. Such proclamation
shall immediately be transmitted to the Congress and published in the Federal
Register.
(b) Any provisions of law conferring powers and authorities to be
exercised during a national emergency shall be effective and remain in effect
(1) only when the President (in accordance with subsection (a) of this
section), specifically declares a national emergency, and (2) only in
accordance with this chapter….
Jonathan
Turley, Shapiro Professor of Public Interest Law at George Washington
University, is one of the people saying that Trump has authority to declare a
national emergency. He wrote the following in January before the declaration of a national emergency was made.
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….
The problem is Trump does have that power
because Congress gave it to him….
… 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 agree with the president, such might authority
was even celebrated….
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.
From the paragraphs I quoted from
the U.S. Code and the words of Turley, it sounds to me like Trump has the
authority to declare a national emergency. With so much opposition to
declaration of a national emergency and the determination to build a barrier
along the southern border, the declaration will most likely end up in the court
system. This means that the President would have to wait weeks, months, maybe
years to be able to build the barrier. This also means that hundreds of
thousands more illegal aliens could overrun our border before we get a barrier.
