The National Review: Should Trump Declare Emergency?

JimSheridan · 2019-01-10T23:02:40Z

Very thoughtful article from a conservative: No, Trump Can’t Use an Emergency Declaration To Build a Wall By DAVID FRENCH Let me begin by stating my policy preference up front. I strongly believe that our nation should bolster its border security, including by building a more effective and longer border wall. A better border barrier would represent a far more humane way of deterring desperate individuals and families from making the extraordinarily dangerous trek to the United States, would properly channel asylum seekers to ports of entry, and would ease the need for border detention facilities. If you believe a nation can and should control who enters its borders, then border barriers are one part of a solution to the problem of illegal entry. But the wall is a symbol now. Democrats will not consent to constructing the founding promise of Trumpism, and Trump (for now, at least) won’t abandon his signature proposal. So he’s floating the possibility of declaring a state of emergency, using a “military version” of eminent domain to seize private land along the border, and building the wall without congressional consent. This would be a serious mistake — a lawless abuse of power that would almost certainly be blocked by the courts (including by Trump-appointed judges). In the remote chance it passed legal review, his declaration would have malignant effects on the American constitutional structure. He would enable future presidents to wield vast powers at a whim, shaking the president loose from his constitutional bonds once and for all. The legal analysis here is relatively simple. The president does not have the constitutional or statutory authority to unilaterally declare an emergency under these facts, seize private land, and spend money to build a wall. The constitutional question was settled during the Korean War. At the height of the conflict — when the United States was locked in a grueling land conflict with hundreds of thousands of Chinese and North Korean troops — President Truman attempted to “take possession of and operate most of the nation’s steel mills” to avoid a strike by the United Steelworkers of America. The necessity of steel to modern military operations is too obvious to require explanation, but the Supreme Court still blocked the president’s takeover. Justice Black, writing for the majority, declared that the president’s authority to act must derive from an “act of Congress or from the Constitution itself.” Since there was no specific enabling statute, Truman attempted to rely on inherent executive powers and his authority as commander-in-chief. The Court rejected his arguments: The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces . . . Even though “theater of war” be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities. Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. With the president’s authority constitutionally constrained in a time of actual war, President Trump won’t have greater power when the “foe” isn’t the Chinese Army but instead a caravan of poor, unarmed Hondurans. So, if the Constitution doesn’t empower Trump to build the wall unilaterally, has an act of Congress granted him the power? No. Not under any fair reading of the relevant statutes. It is true that the president has broad authority under the National Emergencies Act to declare various states of emergency. Most Americans don’t realize this, but America is awash in a series of declared emergencies. In a December 2017 article for Lawfare, Catherine Padhi explained that we are currently in 28 separate federal states of emergency. Indeed, America has been under some form of “emergency” footing for 39 continuous years. CNN has a comprehensive list of these “emergencies.” When you peruse it, you’ll see that many of these “emergencies” have little relevance to most Americans’ lives. For example, we’re in a state of emergency to “Block Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus” and to “Block Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo.” Others are far more consequential, like the Septem...

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But it doesn’t address visa overstays which causes the most illegal immigration. Shouldn’t our immigration reform be a lot tougher than a wall that only addresses a small portion of the issue? How stupid can Trump and his sheep be?

Clearly we need to build a roof to keep out planes from countries where illegals come from. Roofs work. That's why Pelosi and Obama have roofs on their houses.

Posted : January 18, 2019 10:04 am

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