Everyone is buzzing right now about whether Trump will Declare a National Emergency at the Border.
And if he does, what does that mean?
Can he do it?
Will it open Pandora’s Box?
The Democrats have already threatened to dismantle the 2nd Amendment as payback.
But what’s the truth behind all of this?
We’ve got the analysis for you.
First, President Trump is NOT paving new ground here.
According to ABC News, there have been 58 national emergencies declared by past presidents and of those 31 are still in effect!
According to the Federal Register, 58 national emergencies have been declared since the National Emergency Act of 1976 was signed into law by President Gerald Ford.
And 31 have been annually renewed and are currently still in effect, as listed in the Federal Register.
Here's a list of the presidents who declared still ongoing national emergencies.
So anyone who says Trump is opening up a can of worms just doesn't understand history or what's currently already in effect.
Nothing President Trump is doing will give the Democrats any more or any less power in the future if a Democrat is President.
In short, Democrat Presidents have already abused this power many times before and Trump's actions today will have no affect on them abusing it in the future.
Don Jr. summed it up perfectly with this Tweet:
Here's what CNN published about past emergencies:
Past emergencies have focused on everything from swine flu to rough diamonds.
Here's a list of the 28 active national emergencies:
1. Blocking Iranian Government Property (Nov. 14, 1979)
2. Proliferation of Weapons of Mass Destruction (Nov. 14, 1994)
3. Prohibiting Transactions with Terrorists Who Threaten to Disrupt the Middle East Peace Process (Jan. 23, 1995)
4. Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum Resources (Mar. 15, 1995)
5. Blocking Assets and Prohibiting Transactions with Significant Narcotics Traffickers (Oct. 21, 1995)
6. Regulations of the Anchorage and Movement of Vessels with Respect to Cuba (Mar. 1, 1996)
7. Blocking Sudanese Government Property and Prohibiting Transactions with Sudan (Nov. 3, 1997)
8. Blocking Property of Persons Who Threaten International Stabilization Efforts in the Western Balkans (Jun. 26, 2001)
9. Continuation of Export Control Regulations (Aug. 17, 2001)
10. Declaration of National Emergency by Reason of Certain Terrorist Attacks (Sept. 14, 2001)
11. Blocking Property and Prohibiting Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism (Sept. 23, 2001)
12. Blocking Property of Persons Undermining Democratic Processes or Institutions in Zimbabwe (Mar. 6, 2003)
13. Protecting the Development Fund for Iraq and Certain Other Property in Which Iraq has an Interest (May 22, 2003)
14. Blocking Property of Certain Persons and Prohibiting the Export of Certain Goods to Syria (May 11, 2004)
15. Blocking Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus (Jun. 16, 2006)
16. Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo (Oct. 27, 2006)
17. Blocking Property of Persons Undermining the Sovereignty of Lebanon or Its Democratic Processes and Institutions (Aug. 1, 2007)
18. Continuing Certain Restrictions with Respect to North Korea and North Korean Nationals (Jun. 26, 2008)
19. Blocking Property of Certain Persons Contributing to the Conflict in Somalia (Apr. 12, 2010)
20. Blocking Property and Prohibiting Certain Transactions Related to Libya (Feb. 25, 2011)
21. Blocking Property of Transnational Criminal Organizations (Jul. 25, 2011)
22. Blocking Property of Persons Threatening the Peace, Security, or Stability of Yemen (May 16, 2012)
23. Blocking Property of Certain Persons Contributing to the Situation in Ukraine (Mar. 6, 2014)
24. Blocking Property of Certain Persons With Respect to South Sudan (Apr. 3, 2014)
25. Blocking Property of Certain Persons Contributing to the Conflict in the Central African Republic (May 12, 2014)
26. Blocking Property and Suspending Entry of Certain Persons Contributing to the Situation in Venezuela (Mar. 9, 2015)
27. Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities (Apr. 1, 2015)
28. Blocking Property of Certain Persons Contributing to the Situation in Burundi (Nov. 23, 2015)
Here's what else....
President Trump is WELL within his rights to Declare a National Emergency over the Crisis at the Border.
While past "emergencies" may not rise to the standard of an "emergency", this one clearly does.
President Trump has claimed that he is on "solid legal ground" to declare a National Emergency here, and many agree with him.
Take a look:
The Hill published this Opinion article agreeing with President Trump:
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.
CBS News published this analysis, which reached the conclusion that Congress would unlikely be able to overturn President Trump if he declared the emergency:
Could Congress overturn the declaration of a national emergency?
Congress can cancel a national emergency, but it would require a rare amount of bipartisanship. Congress would have to approve a joint resolution disapproving the national emergency, which would easily pass the Democratic-controlled House but could face opposition in the Republican-majority Senate. If both houses pass the joint resolution, it would require the president's signature, and Mr. Trump would be unlikely to sign a bill which overturns his own declaration.
Congress would then have to pass the joint resolution with a veto-proof majority, meaning that two-thirds of both houses would have to approve the bill. Some Congressional Republicans, such as Sens. John Cornyn and Susan Collins, have in recent weeks indicated that they do not support an emergency declaration.
Even Vox said he had "wide leeway" to declare an emergency, referencing legal expert Elizabeth Goitein:
Trump is now declaring a national emergency in addition to the spending deal because he doesn’t want it to look like he lost. But can he do it? Many Democrats and some legal scholars have said that Trump can’t declare a national emergency to get the border wall funded. Others say there are avenues he could definitely try, setting up potential battles in Congress and in the courts.
“He has broad leeway to declare an emergency, frankly, whether one exists or not,” Elizabeth Goitein, a co-director of the Liberty and National Security Program at the Brennan Center for Justice, who recently wrote an in-depth explainer of presidential emergency powers in the Atlantic, told me in January.
In that same Vox article, after a section where the author cites some scholars who think Trump couldn't declare the emergency, the article then adds this section which appears to be the most truthful and realistic:
Others say Trump can do it — and it might be harder to stop him than you’d think
If Trump does declare a national emergency for the border wall, there will almost certainly be challenges to him in both Congress and the courts. But it’s not entirely obvious they will stick. As we saw with Trump’s travel ban, he’s often willing to do things that go over the legal line, and then leave the courts to figure out where exactly that line lies.
The National Emergencies Act contains a mechanism for Congress to overrule the president by passing a joint resolution out of the House and Senate. With Democrats in control of the House, it would presumably pass there easily, and Ackerman, the Yale professor, says he believes it could pass the Senate too.
“Mitch McConnell does not have the power to bottle this up,” he said. “So that means that there would be a moment of truth for the Republican Party.”
But thanks to a 35-year-old court case, Congress might not be able to override the president that easily. In the 1983 case Immigration and Naturalization Service v. Chadha, the Supreme Court decided that a one-house legislative veto violated the Constitution. After that, the National Emergencies Act was amended to require the joint resolution to override the president’s declaration — like a typical law, it requires a simple majority in the House and Senate and the president’s signature.
Trump would probably not be willing to sign a joint resolution to reject his own emergency declaration, so that means that Congress would need to override him with a two-thirds majority in each chamber.
“The safeguard you think is there in the National Emergencies Act turns out not to be there, or at least most constitutional scholars who have looked at that question closely think that the Supreme Court would never go for it, especially now that we have a Supreme Court with two new members who are unusually deferential to executive power,” Scheppele said. “It could be that actually nobody could tell him no.”
McConnell, speaking on the Senate floor on Thursday, said he supports the president’s emergency declaration. House Speaker Nancy Pelosi (D-CA) at a press conference on Thursday said congressional Democrats would review their options and are “prepared to respond appropriately” to Trump’s declaration.
A national emergency declaration for the border wall would likely face a challenge in the courts. But it’s not clear which parties would have standing to file a lawsuit, and moreover, any decisions would take time.
Being the first mover in declaring the emergency would give Trump a “tremendous advantage,” Ackerman said.
“There are good legal challenges, to be sure, and I think there would be a real fight,” Goitein, from the Brennan Center, said.
Some Republicans previously encouraged Trump to make the move. Sen. Lindsey Graham (R-SC) in a tweet earlier in January called on the president to declare an emergency to build the wall. Rep. Mo Brooks (R-SC) said in an interview on CNN that Trump had the right to declare an emergency “because the United States code says so.”
In the end, we believe President Trump has clear authority to Declare and Emergency over the terrible National Security Threat and Crisis at the border.
Nothing could fit the definition so well as what we're seeing happen at our border.
And so we end with what Lindsey Graham said a few weeks ago:
Thank you Sen. Graham, that is RIGHT ON!
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