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Author: Subject: The National Review: Should Trump Declare Emergency?

World Class Peach





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  posted on 1/10/2019 at 11:02 PM
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 September 14, 2001, “Declaration of National Emergency by Reason of Certain Terrorist Attacks.”

The reason the public largely doesn’t track these emergency declarations is that they don’t make the president an autocrat. Instead, they unlock powers that are themselves limited by statute. And, in this case, the two relevant statutes for the border wall are simply not broad enough to encompass Trump’s dream of “military” eminent domain.

The first statute is 10 U.S.C. Section 2808. Its language is relatively restrictive:
In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated. [Emphasis added.]

Note the key limitations. The president would have to show that the “emergency” requires the use of the military — a difficult task in a time of peace when the relevant border is with a national ally. It’s a task rendered even more difficult by the fact that border security is a function of the civilian Department of Homeland Security, not the Department of Defense.

Even then, the language indicates the funds can be used only to support the “use” of the armed forces. This strongly implies that the funding would be reserved for projects that benefit the military. That conclusion is buttressed by the next section, which relates to a different category of project — those projects that are actually essential to national defense. 33 U.S.C Section 2293 states:

In the event of a declaration of war or a declaration by the President of a national emergency in accordance with the National Emergencies Act [50 U.S.C. 1601 et seq.] that requires or may require use of the Armed Forces, the Secretary, without regard to any other provision of law, may (1) terminate or defer the construction, operation, maintenance, or repair of any Department of the Army civil works project that he deems not essential to the national defense, and (2) apply the resources of the Department of the Army’s civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense. [Emphasis added.]

Once again, I’ve highlighted the relevant provisions. Section 2293 grants the president greater discretion in one clause, then limits that discretion in another. While the emergency only “may require” use of the military, the project must be both “authorized” and “essential” to “national defense.” The language plainly contemplates shifting of funds from one or more projects to other projects already authorized.

A new or expanded border barrier has not been authorized by any lawful process. Moreover, there is no credible showing that expanded border barriers are essential to our national defense. The administration has been trying to emphasize the alleged national-security threat on the southern border, but as it describes the threat of terrorist entry, it’s inadvertently highlighting that suspected terrorists make use of other entry points than the southern border — namely, airports. In 2017, Trump’s State Department said that it had “no credible information that any member of a terrorist group has traveled through Mexico to gain access to the United States.”

In September 2018, the State Department revised its statement to read: “At year’s end there was no credible evidence indicating that international terrorist groups have established bases in Mexico, worked with Mexican drug cartels, or sent operatives via Mexico into the United States. The U.S. southern border remains vulnerable to potential terrorist transit, although terrorist groups likely seek other means of trying to enter the United States.”
We should be vigilant about controlling access to our country. I believe that more border barriers are an important aspect of border security. But words mean things, and the idea that a border wall is so “essential to the national defense” that it “may require the use of the Armed Forces” to deal with a national emergency is to stretch the plain meaning of the statute past the breaking point.

Critically, we cannot forget that in a time of peace, border security is a civilian function, and the penalties for unlawful crossing are matters for civilian law enforcement. Illegal entry is only a misdemeanor under federal law, and there are profound legal limits on the use of the armed forces in a law-enforcement capacity. In the New York Times, Yale professor Bruce Ackerman claims that if members of the military built the wall, they would commit a federal crime.

I don’t think Ackerman is right. The statute renders criminal the “use” of the armed forces to “execute the laws.” The legal liability (if any) would likely attach to the commander-in-chief. And it is less likely that the so-called posse comitatus statute would be used to enforce actual criminal liability than it is that the statute would help inform the courts as they interpret the statutory scheme applicable to use of the Armed Forces. In other words, ambiguity on domestic military use in peacetime and in the absence of extraordinary armed confrontations may well be resolved against the president.

Make no mistake: If President Trump attempts to defy the Constitution and federal statutes to use the military to seize land and build a wall without proper congressional appropriation, he’ll commit a grave abuse of power. Fortunately, our system of checks and balances will likely intervene to stop his lawless project before it starts, but it is still the president’s principle job to preserve, protect, and defend the Constitution — not to expand the power of an increasingly imperial presidency. The wall needs to be built through the proper constitutional process or not at all.

By DAVID FRENCH — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom. @davidafrench

https://www.nationalreview.com/2019/01/no-trump-cant-build-a-wall-through-m ilitary-eminent-domain/

 
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Peach Master



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  posted on 1/10/2019 at 11:44 PM
he's gonna need all that border wall $$$ to pay for the damage done by the shutdown.

besides. our border would be safer if the high tech surveillance as used.
the wall itself presents a surmountable barrier.

the whole issue is stupid.

 

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  posted on 1/11/2019 at 01:15 AM
That was an excellent read.
 

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  posted on 1/11/2019 at 12:08 PM
National emergency? How sensitive are these folks? Instead of being the #1 superpower in the world, we are now crying “emergency” because of illegal border crossings. Good lord. Enough with the emotional reactions already.
 

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  posted on 1/11/2019 at 07:08 PM
"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."


Who actually owns the land where the wall would be built, do the individual states own it?



 

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Zen Peach



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  posted on 1/11/2019 at 07:14 PM
quote:
"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."

Who actually owns the land where the wall would be built, do the individual states own it?


"Note the key limitations. The president would have to show that the “emergency” requires the use of the military — a difficult task in a time of peace when the relevant border is with a national ally. It’s a task rendered even more difficult by the fact that border security is a function of the civilian Department of Homeland Security, not the Department of Defense."

But Homeland Security comes under the Department of Defense. When there was the reshuffling of agencies a lot of things changed, including some agencies coming under the National Intelligence Directorate. We have people MS-13 gang members who should be declared terrorists because they want to act in accordance with the laws of their gang and administer justice based on gang law trying to supersede laws of this country, and coming here illegally and crossing borders of different states to do so. That should encompass ICE, and the FBI as well as state and local gang task forces to deal with that problem. So it becomes a Homeland Security problem because they wage terror on US soil, just not the kind of terror people think of when they think of terror. People have been conditioned to think terror means Isis, Al Qaida or other groups, what about gangs? Why are they not considered terrorists?

 

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World Class Peach



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  posted on 1/11/2019 at 07:28 PM
Gina, in many cases, private landowners own the land in question. That has stopped some border protection measures by Bush and Obama in the past because the courts support the rights of private citizens to own land. Most conservatives tend to support the rights of individual citizens, but you may be right in thinking that Trump supporters are so willing to anything Trump wants that they will disregard traditional conservative values.

As far as the freewheeling use of the U.S. military on our soil, the same holds true. If you want to claim the army needs to be brought in to stop MS-13, then certainly a president would be justified in bringing the army to seize guns from white power militia groups. Again, conservatives who are not reactionaries - conservatives who do not fly off the handle at every internet headline - probably have the wisdom to urge the president not to do that kind of thing.

If you are watching the news today, there is some excellent theater. Lindsay Graham, who has been fairly moderate in the past, is supposedly urging the President to declare national emergency, but the President is supposedly resisting, trying to be the patient one. This is pure theater. This is an obvious "Good cop / bad cop" they are doing in public so that the erratic Trump can appear more stable.

However, people who can read and who have a memory span of more than one week know better. They know obvious things like:

-this guy keeps shifting his idea of what the wall is
-he has lied about former presidents' statements about a wall
-his press secretary has lied about the number of terrorists crossing the border
-he has shifted his idea about who is responsible for the shutdown after declaring publicly that he would own the shutdown
-he has changed his mind about the bill that the Republicans did support
-he is trying to change his story about Mexico paying for the wall

These inconsistencies are public record. They are recent, and they should disturb anyone who wants honesty and transparency. They should get anyone who claims that "This President tells it like it is" to recognize that frequently lying and changing one's story is NOT telling it like it is.

I see validity to building walls across certain strategic sections. I do not see validity in lying to the public. Trump has shot himself in the foot by doing so.

Incidentally, Business Insider is noting that GoFundMe is returning money to the people who were trying to raise money for the wall.

 

Zen Peach



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  posted on 1/12/2019 at 02:39 PM
1. It turns out some of the land is owned by Native American tribes, so that can become a BIG problem to seize any of that.

2. Some of it is in the Rio Grande River and we have a legal treaty with Mexico on that part of it.

"Building a wall in the middle of the Rio Grande would be challenging for obvious reasons, but there are also legal issues. A treaty signed by Mexico and the US in 1889 prevents any disruption to the flow of the river, meaning any border wall would probably have to be built on its banks. This, again, presents obvious problems."

3. Sand dunes

4. 9,000 foot peaks - would definitely need some military to figure out how to fence that in.

5. Wild life and the Big Bend National Park having responsibility for part of that. [legal issue].

6. Cost: "Mitch McConnell, the Republican majority leader in the Senate, stated the cost would be between $12bn and $15bn, while a report by the US Department for Homeland Security estimated the wall would cost between $21.6bn and $25bn. Meanwhile, a report by Senate Democrats, said the wall could cost nearly $70bn to build and $150m a year to maintain."

"Wall Street research and brokerage firm Bernstein Research said the price tag could be between $15bn and $25bn, while construction consultants Gleeds believe it would be in the region of $31bn."

"Meanwhile, Konstantin Kakaes, an international security fellow with the New America Foundation writing in the MIT Technology Review, said the total could reach $40bn."

Building it is one thing, the cost to maintain it is another.


https://www.bbc.co.uk/news/resources/idt-d60acebe-2076-4bab-90b4-0e9a5f62ab 12






[Edited on 1/12/2019 by gina]

 

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Extreme Peach



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  posted on 1/12/2019 at 02:47 PM
I think it's just about time for the People Of The United States (the real POTUS) to declare Emergency and remove this treasonous criminal from office!!!!!!..........Peace........joe

Come on all together now one time: "Lock him up! Lock him up! Lock him up!!!!!.......

 

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  posted on 1/12/2019 at 03:21 PM
Winter Is Here


 

Peach Master



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  posted on 1/12/2019 at 06:14 PM
quote:
1. It turns out

These are facts that have been known, examined, researched, & debated since 2004. After examining all the issues (topography, land use law, foreign policy/treaties, etc.), Congress recognized the obstacles to building a physical barrier of traditional construction material such as steel the length of the southern border.

In 2007, Congress, which is not in the construction business, recognized that there are a MYRIAD OF OTHER OPTIONS that better serve the purpose & put the issue of how & where to deploy the most up-to-date security technology in the very capable hands of DHS.

In 2016, Trump hit the campaign trail & started espousing his knowledge of concrete slab lengths. A concrete edifice became a campaign mantra w/no recognition whatsoever of the Rio Grande, mountainous terrain, and other issues previously analyzed & addressed by Congress.

Trump made an uninformed campaign promise. During his 1st 2 years in office, he did nothing about this concrete edifice. Now, he's put it at the forefront of his agenda & his voters are quoting a summary of 20-year-old obstacles that still exist:

The mountains haven't moved.
The Rio Grande treaty still exists.
Private landowners want exorbitant prices for land because eminent domain doesn't apply.
Engineers have presented far superior alternatives in sections.
That's why there are objections to his wall.








[Edited on 1/13/2019 by cyclone88]

 

Zen Peach



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  posted on 1/13/2019 at 04:10 PM
In all fairness during the first two years he tackled some other things, like tax reform, etc. He tried to take on everything that was thrown at him or demanded from him as it came up.

The objections from Pelosi were because she did not want 'the dreamers' to be stopped from coming here. Remember the fiasco over DACA? That then morphed into the crisis of the caravan. The Democrats wanted the influx of new people so that they could get them registered as Democrats expanding the base for the 2020 elections. They are terrified of Trump being re-elected for four more years in 2020. To try to make sure that does not happen, they need more people, new people who they can court with promises of a better life.

 

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Zen Peach



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  posted on 1/13/2019 at 05:25 PM
This just in.

Senator Ron Johnson, chairman of the Homeland Security Committee, told CNN that he would "hate" to see Trump invoke emergency powers for a wall. "If we do that, it's going to go to court and the wall won't get built," he said.

https://www.yahoo.com/news/top-republicans-oppose-border-emergency-shutdown -drags-181051558.html

 

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  posted on 1/13/2019 at 11:49 PM
quote:
The objections from Pelosi were because she did not want 'the dreamers' to be stopped from coming here. Remember the fiasco over DACA? That then morphed into the crisis of the caravan. The Democrats wanted the influx of new people so that they could get them registered as Democrats expanding the base for the 2020 elections. They are terrified of Trump being re-elected for four more years in 2020. To try to make sure that does not happen, they need more people, new people who they can court with promises of a better life.


This quote proves two things.

#1 - You have no idea who the "dreamers" are. They don't come here. They have been here since childhood and grew up here. If they are coming here, they are not "dreamers."

#2 - Illegals can't register to vote as Democrats or anybody else, as they can't vote period.

[Edited on 1/14/2019 by 2112]

 

Peach Master



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  posted on 1/14/2019 at 07:52 AM
quote:

This quote proves two things.

#1 - You have no idea who the "dreamers" are. The don't come here. They have been here since childhood and grew up here. If there are coming here, they are not "dreamers."

#2 - Illegals can't register to vote as Democrats or anybody else, as they can't vote period.


Exactly, but I don't think the poster is alone in misconceptions or lack of understanding. There's just blind loyalty to Trump.

 

Zen Peach



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  posted on 1/14/2019 at 06:55 PM
quote:
quote:
The objections from Pelosi were because she did not want 'the dreamers' to be stopped from coming here. Remember the fiasco over DACA? That then morphed into the crisis of the caravan. The Democrats wanted the influx of new people so that they could get them registered as Democrats expanding the base for the 2020 elections. They are terrified of Trump being re-elected for four more years in 2020. To try to make sure that does not happen, they need more people, new people who they can court with promises of a better life.


This quote proves two things.

#1 - You have no idea who the "dreamers" are. They don't come here. They have been here since childhood and grew up here. If they are coming here, they are not "dreamers."

#2 - Illegals can't register to vote as Democrats or anybody else, as they can't vote period.

[Edited on 1/14/2019 by 2112]


The people trying to come here now say that they have dreams or a better life, so they are dreamers also, just not the DACA dreamers.

The illegals can vote in local school elections, and this happened in California. They just at this time do not have the right to vote in national elections.

 

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Zen Peach



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  posted on 1/14/2019 at 06:56 PM
quote:
quote:

This quote proves two things.

#1 - You have no idea who the "dreamers" are. The don't come here. They have been here since childhood and grew up here. If there are coming here, they are not "dreamers."

#2 - Illegals can't register to vote as Democrats or anybody else, as they can't vote period.


Exactly, but I don't think the poster is alone in misconceptions or lack of understanding. There's just blind loyalty to Trump.


That's a nice cyber hug, thanks.

 

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  posted on 1/14/2019 at 07:39 PM
quote:
quote:
quote:
The objections from Pelosi were because she did not want 'the dreamers' to be stopped from coming here. Remember the fiasco over DACA? That then morphed into the crisis of the caravan. The Democrats wanted the influx of new people so that they could get them registered as Democrats expanding the base for the 2020 elections. They are terrified of Trump being re-elected for four more years in 2020. To try to make sure that does not happen, they need more people, new people who they can court with promises of a better life.


This quote proves two things.

#1 - You have no idea who the "dreamers" are. They don't come here. They have been here since childhood and grew up here. If they are coming here, they are not "dreamers."

#2 - Illegals can't register to vote as Democrats or anybody else, as they can't vote period.

[Edited on 1/14/2019 by 2112]


The people trying to come here now say that they have dreams or a better life, so they are dreamers also, just not the DACA dreamers.

The illegals can vote in local school elections, and this happened in California. They just at this time do not have the right to vote in national elections.


Ok, so illegals can vote in school board election in a couple cities. Do you really think Pelosi or anybody else is really interested in allowing illegals in to vote in school board elections in a couple cities. Nobody other than people living in a city that allows illegals to vote in school board elections should really care. It has no bearing on national or state elections.

Again, your post makes no sense.

 

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  posted on 1/14/2019 at 09:04 PM
quote:
Ok, so illegals can vote in school board election in a couple cities. Do you really think Pelosi or anybody else is really interested in allowing illegals in to vote in school board elections in a couple cities. Nobody other than people living in a city that allows illegals to vote in school board elections should really care. It has no bearing on national or state elections.

Again, your post makes no sense.


I think 11 states have allowance for non-citizens to vote in local elections or issues. Far be it for me to try and make a point for Gina, but playing devil's advocate, allowing non-citizens to vote on any issues is just the start of normalizing residents, rather than a citizen's right to vote. There are those that think these people are disenfranchised and not only deserve the right to vote, but that it is only fair.

 

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  posted on 1/15/2019 at 05:14 PM
Why should they be allowed to vote in anything? They are here illegally. They can also enroll and go to college, why should illegals be able to assimilate into society when they are here illegally? We jsut call them un-documented rather than illegal, they are still ILLEGALLY here so why do we need to call it something different?

[Edited on 1/15/2019 by gina]

 

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  posted on 1/15/2019 at 09:02 PM
Why does the prez whine and whine and whine about the Dems not being willing to build him a wall, and hold millions of people financially hostage, when the jerk had total control to build a wall for 2 freakin yrs and nothing???........Peace........joe
 

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  posted on 1/16/2019 at 04:19 PM
quote:
Why does the prez whine and whine and whine about the Dems not being willing to build him a wall, and hold millions of people financially hostage, when the jerk had total control to build a wall for 2 freakin yrs and nothing???........Peace........joe


Because he knew that the Republicans wouldn't give him what he wanted, but he didn't want to blame them. Now he thinks he has someone to blame now that the Democrats control the House.

 

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  posted on 1/16/2019 at 04:43 PM
quote:
Why does the prez whine and whine and whine about the Dems not being willing to build him a wall, and hold millions of people financially hostage, when the jerk had total control to build a wall for 2 freakin yrs and nothing???........Peace........joe


Total control would be a filibuster majority in the Senate. He did not have that.





 

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  posted on 1/16/2019 at 04:49 PM
quote:
Why should they be allowed to vote in anything? They are here illegally. They can also enroll and go to college, why should illegals be able to assimilate into society when they are here illegally? We jsut call them un-documented rather than illegal, they are still ILLEGALLY here so why do we need to call it something different?

[Edited on 1/15/2019 by gina]


I agree. They should not be allowed to vote at all.

The other side of it says that they are living in communities, their presence can make up a sizable portion of a given area. I read that noncitizens make up 20-33% of some cities and some feel by not giving them a voice in elections doesn't fairly represent the community. Then you have people that say they pay sales taxes, or if they have committed identity fraud and obtained somebody else's ssn for employment, then they have having payroll taxes withheld, so their earnings are going into the system, yet they can not have any influence over how that system is run. And this isn't my view so there may be other reasoning.

I think that only US citizens should have the right to vote in any local, state or federal election. But this is where we are as a country. Nobody agrees on anything any more and there are people out there that will fight for everyone to vote regardless of citizenship.

 

Extreme Peach



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  posted on 1/16/2019 at 05:50 PM
quote:
quote:
Why does the prez whine and whine and whine about the Dems not being willing to build him a wall, and hold millions of people financially hostage, when the jerk had total control to build a wall for 2 freakin yrs and nothing???........Peace........joe


Total control would be a filibuster majority in the Senate. He did not have that.




Trump is a Goof!!! Had all 3 branches and got done....0....now claims the Dems are holding him back? C'mon, he's a clown.........Peace........joe

 
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