The expression the author was looking for was, 'Hard cases make bad law.' Perhaps the most bizarre aspect of the President's actions is that traditionally Republicans were opposed to a very powerful executive heading the government. It seems that they have completely forgotten who they were and what they stood for. They now stand for power at any cost to the future.
66
You make your bed, they say--and you have to lie in it.
I do take Mr. Chesney's point: any quantity of judicial action Mr. Trump lands himself in now may well have undesirable consequences.
Just as his declaration of a "national emergency" (as some jittery Republicans have pointed out) may ALSO have "undesirable consequences."
Like when a Democrat is elected to the White House and begins to cast a baleful eye upon our Second Amendment. Here too--with a far greater show of reason!--that hypothetical President might well declare a "national emergency" of his own.
All these points are well taken. But--we are where we are. "They must needs go whom their fate drives." (Old quote) Consider the following:
(1) We have a President virtually out of control.
(2) We have a Democratic House--praise the Lord! But--
(3) Our Senate? Slumbering at the switch. Doing nothing.
So many of us--millions, I expect--are looking anxiouly at our judicial branch. It seems overkill to say: the Republic is in danger. American democracy is imperiled as never before. But--
--the Republic is in danger. American democracy is imperiled as never before.
Sorry.
We look to the judges. To maintain a semblance of law in this country. To administer a vigorous slap to those covert hands tugging away at such democratic norms as we have left.
Mr. Trump--has got to be stopped.
If not now--when? If not by our judges--then by whom?
Go to it, guys!
God bless you!
4
Robert,
Your entire column rests upon one false assumption:
Republican judges are no more consistent than Republican politicians. They will allow wide discretionary powers to Republican Presidents, and almost no power at all to Democratic Presidents. It is called hypocrisy, and it is endemic to the Republican party.
Did you really think Thomas, Gorsuch, or Brett would be honest (consistent) brokers on SCOTUS? Are you kidding me?
(Mind you, I don't think Beto would even try to do anything like what Trump is doing, and neither would Kamala...they both are sincere and consistent, know the law, but they also know SCOTUS would vote down anything they proposed. In that regard, this is not a fair fight. Republicans lie, cheat, and steal...and never go to jail. Democrats have read the Constitution and try to abide by it.)
9
I honestly don’t know if this country is going to survive trump. I’m glad I don’t have children, our future looks dire.
6
A thoughtful and well reasoned article but ignores the obvious fact that courts, especially the Supreme Court, will bend over backwards to avoid the central issue in a political case like this. They will strive to find some narrow grounds to rule and avoid setting a precedent in either direction unless it is unavoidable or demanded by a politically ideological Court majority.
And that is where hope lies. If the Court is unable to dodge the issue, this is clearly the extreme case. No other President would ever dream of declaring a national emergency on such whimsical, flimsy, factually false, personal grounds. There was ample time for Congress to act and they , in fact , did act and he simply did not get his way in a matter which all experts agree is totally unnecessary except to try to fulfill a foolish campaign promise. The bill passed by Congress and signed by the President adequately addressed any "emergency" which may exist based on the Congressional hearings and studies.
Whatever the definition may be, Congress clearly did not mean the undefined term "emergency" to mean Presidential whim. To find this declaration of emergency to be beyond what any reasonable person could find and beyond any possible intent of Congress in using the word would in no way circumscribe the future legitimate or even questionable use of it by any future President.
2
The courts must interpret the laws passed by Congress. People fear a court will say, ‘Congress left this door wide open by not being more specific about what kind of “emergencies” the President may declare’.
But Congress DID specify – they wrote the word “emergency” into the statutes. Congress meant “emergency,” nothing more nor less. And that word, as broad as it may seem absent more clarifying language, still has meaning in itself – meaning which the current situation does not fulfill.
Merriam Webster definition:
“1: an unforeseen combination of circumstances or the resulting state that calls for immediate action.” (The current situation at the border is not unforeseen, and doesn’t call for immediate unilateral presidential action, because the government’s own numbers show the problem has been getting significantly less in the past few years.)
“2: an urgent need for assistance or relief.” (Trump said, “I don’t NEED to do this.” If there were an urgent need, why not act two months or two years ago, after having railed about the border all through his campaign.)
Thus, Trump flouts the clearly stated will of Congress – and the Constitution – to twist the word “emergency” to justify anything he wants. Even he can’t change the meaning of the word “emergency” when it comes to the law.
It remains to be seen whether Trump’s recent appointees to the Supreme Court will use honest common sense, or will simply rubber stamp Trump’s outrageous grab for autocratic power.
5
The real culprit in the dispute are the liberal attorneys general who challenge the obvious discretionary power of a President they don’t like. When conservative attorneys general challenge the next liberal president’s authority to declare emergencies - please don’t whine - just sit back and accept what goes around ...
2
And I assume that you won’t whine when the next president funds the Green New Deal by declaring a national emergency. What goes around comes around, right?
2
You've got that a little backwards. Trump is trying to set a precedent where a president can ignore the basic separation of powers and direct funds to pet projects without an appropriations bill by declaring a fake emergency. He might succeed but if the SC rubber stamps it there's nothing for conservative AG's to challenge when that tactic goes the other way. At that point it would just be a constitutional use of the law because the SC already said so. That's why your own party opposed trump doing this until he did, when they promptly bent over and grabbed their ankles. The Dem president in 2020 can steam ahead on gun control and climate change, ignoring the check from the Republican Senate, by declaring those things to be emergencies.
4
Perhaps the culprit here is the Congress who gave the President the ability to unilaterally declare an emergency with only a joint resolution by both houses (with a supermajority at that) in opposition. The reading of the bill would appear to give the president rather sweeping authority that well may present a very high bar to overcome as it would appear to allow him to personally decide what constitutes an emergency and what does not. Note that even a Postal Strike was declared such an emergency. I sincerely hope that the Democrats will take a breath take a step back and choose a nuanced approach to those most critical battles to fight rather than an emotional shotgun approach to every choice and decision he makes. In my opinion it makes them look vengeful and punitive rather than deliberative and wise.
1
The crux of the matter that the courts will deal with in this case are that Trump undermined himself when declaring the national emergency by saying that it wasn't a real emergency.
Since in the past national emergencies have dealt with sudden major events that come up like 9/11 or natural disasters like hurricanes or even the travel ban on certain countries that didn't have proper protocol for screening, this case is different since Congress controls the powers of the purse.
Let's hope that all of these challenges by Trump to due process of law, to separation of powers, and to the fundamental importance of our Constitution are not allowed to further disrupt our democracy.
2
Deference is not a rubber stamp. It is not enough to say that MS-13 members are streaming across the border; instead the President must demonstrate that the declaration fits the statutory requirements, including, as the article says, that the construction is military construction on military land.
If the President ignores the findings necessary to fit within the statute, a court need not even address whether the decision is entitled to deference, because it is procedurally defective. This is why the President had to keep trying to get the "Muslim ban" correct. Here, he cannot meet the requirements no matter how many times he tries because he's using a statute that does not fit the circumstances.
1
"One danger in the current litigation is that this tradition will be applied in a reckless way. In the worst case, the litigation might produce a Supreme Court holding articulating and entrenching a deference-on-steroids version of this concept."
This is disingenuous. The politics of the immediate situation mandates that a decision upholding presidential deference be narrowly construed. To obtain a Supreme Court ruling going wildly overboard on presidential deference one would need a level of public fear comparable to the WW2 internment of Japanese Americans or McCarthy era hounding of left-wing intellectuals.
No, Professor Chesney is actually concerned about the opposite scenario -- that disgust with Trump's crassly political trashing of separation of powers boundaries will result in a tightening of discretionary executive authority which might impede national security applications when the country returns to more normal times.
Leaving aside vexing questions of whether normal times can ever be restored, Chesney's concerns seem overstated. The Court's conservative majority has a history of rubber-stamping executive assertions of police power as long as the targets are ones they favor controlling.
A wrinkle here is the role of Kavanaugh, who deems himself a judicial critic of unconstrained delegations of administrative authority. On principle, he could engage in a similar exercise regarding executive discretion. But here one surely expects gratitude to trump principle.
"It may be that this is an outlier situation in which the boundaries of wise deference have been met and exceeded, with the president’s candor undoing his own legal case. "
That line seems to be the crux of this. Yes, the president does seem to have exceeded the boundaries of deference; it's time for the courts to do their job in keeping the executive branch in check. The idea that somehow if the courts recognize clear cases of executive overreach it'll be a slippery slope to judicial overreach and the gutting of deference makes no sense to me. I realize we've become accustomed to a culture of extreme positions -- but is it too much to expect that judges are still capable of exercising judgment?
I fear if Trump's use of emergency powers is argued and decided on such legalistic notions proffered by Mr. Chesney, that our nation as a democracy is doomed. The issue is simple: Congress only has the power to appropriate money for spending. Trump disagreed with Congress' determination. Trump decides to take on the power of appropriations because he lost. The Act may exist, but not in a vacuum. The case can't be decided without assessing the motives and intent of the President, and it clear that he is using it unlawfully to usurp the rightful power of Congress.
1
Recent Yale study: there are more than 20 Million foreign nationals living in this country illegally. Our own citizenry is subsidizing their free healthcare and their children’s education while cheap labor drives wages down for working-class Americans.
It’s costing Americans $Billions...year after year after year.
And THAT, my fellow Democrats, is a national emergency.
https://insights.som.yale.edu/insights/yale-study-finds-twice-as-many-undocumented-immigrants-as-previous-estimates
4
@Michal I don't understand your point; building a wall will not reduce the number of foreign nationals in your country.It may reduce it if the stats do not show that the greatest numbers of those foreign nationals iss the result of some overstay of their visas.Best
1
@yves rochette
A physical barrier will help put an end to what is currently an endless stream of migrants from crossing our borders illegally in the first place.
2
Trump’s remarks don’t matter. What people think about whether there is an emergency or not does not matter either. Since Congress was bypassed, no emergency can be declared. If that is not the rule then it should be.
3
@SP
As long as Trump continues to play to the Republican Senate and stack the Supreme Court with his hand-picked nominees, his remarks matter.
"The executive branch as a whole possesses access to information, expertise and experience that are critical for sound policy-making..."
Are we sure about that considering this president and his disdain for the opinions and expertise of those with experience and his delusional belief that he knows more than the generals?
1
Courts have frequently litigated the extent of Presidential powers. Lincoln was given right to blockade Southern states. FDR was given right to inter Japanese-Americans. Truman was barred from seizing private steel companies. Clinton was barred from use of the line-item veto. Obama was barred from deferring legal action in cases against illegals. And Trump was barred from excluding Muslim immigrants.
There is quite a list of similar instances, all dealing with the President's powers. As a result, the suggestion here that the Court ventures into dangerous ground when determining such limits is not supported by the history of the Court and its many decisions on similar matters.
2
As a long ago law school graduate I can say that Professor Chesney certainly sounds like a law professor. The problem here is that Trump has gone way past the norms to directly usurp the power of the purse given only to Congress by the Constitution. There is no fine line here. It is a blatant usurption of the Congress' constitutional powers without any justification for doing so, other than to save Trump's hide with his base. If the courts are not made up of Obama judges, Bush judges, Clinton judges and Trump judges as Justice Roberts has indicated then we should have no worries. The issue is clear. On the other hand, if the courts are made up of the biased judges that Trump believes in we are going to be left with a horrible precedent, virtually eliminating the need for future Presidents to go to Congress for funding. I am keeping my fingers crossed that there was a kernal of truth in what Justice Roberts professed to believe. We will all be watching.
4
the courts must see that the infringement on the rights of congress are also a threat to the judiciary. they need to say where the balance is and maintain that.
2
The Constitutionality of Trump’s border emergency declaration will likely hinge on Supreme Court swing voter Chief Justice John Roberts. Based on his past decisions, Roberts is unlikely to place the Supreme Court above the Executive Branch by declaring the border not an emergency or military matter. His decision will be as narrow and technical. On the travel ban, Roberts ignored Trump’s inflammatory and racist statements toward Muslims, nothing to do with security and identifying potential terrorists, to okay his ban with minor modifications. The sole purpose of Trump’s wall has been to soothe the white racial anxiety of his base, from Roger Stone’s proposal in 2015 to now, justified by a stream of racist lies about Latino immigration with no relationship to security. Technicalities don’t matter. If Roberts affirms the wall, he will inflame racism and white supremacy throughout American society.
It's interesting that we all assume - correctly, in my opinion - that Trump has four guaranteed votes on the Supreme Court for this farcical declaration and, if it stands, first of many dictator's decrees. Roberts might put the kibosh on it - might - but the fact that we believe we have four guaranteed fascists on the Court is pretty bad all by itself. This is not abortion, where it is a question of values and the Constitution does not speak unambiguously. This is a black-and-white abuse of power by a would-be dictator. And we can bet our bottom dollars that four of the nine will back it. "Sad."
3
Just impeach him. No need to involve the courts, Supreme or otherwise. If we have ever seen a good example of "high crimes and misdemeanors", trying to usurp the role of Congress is it. Impeachment is not about crime or statute. The courts could rule either way and it does not change the obviousness of this being an impeachable offense.
Since the House would approve the charges, whether Trump would be convicted or not is up to the Senate, but I suspect he might be in serious trouble as of January 2021, when the Democrats might well enjoy a supermajority or close to it, even if he might be safe up until then.
2
Reading this essay and thinking about the make-up of the federal does not give me warm and fuzzy feelings, nor ones of confidence in the judiciary.
"The deference tradition exists for good reason," Professor Chesney claims. He says it is "a valuable tradition."
For example? Where and when has the tradition of judicial deference to the executive branch been valuable to the United States?
Interning Japanese-Americans? The Bay of Pigs? The Tonkin Gulf Resolution? Iran-Contra? WMD in Iraq? Enhanced interrogation, aka torture?
Professor Chesney says the good reason for deference to the executive branch is the president's access to "information, expertise and experience that are critical for sound policymaking."
Great, in cases of sound of policymaking. But again, what cases would that be?
Congress and the courts have deferred to presidents because it's politically easier than fulfilling the Constitutional responsibility to check and balance the executive branch where it counts most, in dubious claims of national security and national emergency.
The United States could do with a lot less of that kind of deference.
2
Who not just declare the Emergency Powers Act unconstitutional and be done with it? This would restore powers to the Congress that rightfully belong their under our Constitution and ensure that Congress actually show up to work, rather than being on perpetual “break” (read: vacation). Same with the War Powers Act. I’m sorry, but if these people want their fabulous salaries and benefits, they should actually do some work rather than flapping their lips in front of tv cameras. That might also slow our descent into authoritarianism.
2
This emergency declaration will be remembered by later generations as a frivolous abuse of power motivated only by the worst of racial and socioeconomic prejudices. The White House is doing this for one reason: to appease the President’s base. Republicans in Congress who criticize the declaration but offer no solutions to reverse it share a good portion of the blame as well and they deserve to be ousted in 2020.
1
Sound policymaking? Facts? A mnemonic device = a national emergency?
Trump has a tiger by the tail and he can't let go. He's way in over his head - out of his depth.
And the end, is not going to be pretty - for him or for the land of the free and the brave...
2
Why can't we impeach this traitor???
4
I agree with Prof. Chesney that this issue presents the opportunity for a dreadful decision either way. Unfortunately, the tortured 5-4 ruling by the Court's conservatives in the immigration ban case is very likely to be a template for John Roberts to compound his error in this case by engaging in more meaningless fluff that defers to the executive without facing any actual facts or constitutional issues. If Roberts possesses even a sliver of his solemnly professed concern for the legitimacy of the Supreme Court, he will find a way to reign in this lawless administration without hampering the legitimate executive concerns raised by Chesney. But, Roberts' history does not bode well for such an outcome.
That being said, it is without question that one undeniable accomplishment of the Trump presidency is that the administration has presented a long, detailed list of defects and deficiencies in our laws governing the conduct of the executive for a subsequent Congress and White House to correct if these legislators and a new president actually want to preserve and defend the Constitution of the United States instead of just pressing political advantage in a zero-sum quest for power at all costs. The prospects of finding a sufficient number of Republicans with such patriotic concern are not encouraging.
I guess we will know who is a 'made man', outside of the executive branch and Fox News, when the die is cast.
1
My emergency is that tis of dt my country is dying.
Please help. 622 days until we vote. Sharpen your pencils.
Why should there be deference when the emergencie declaration is based on lies?
1
Imagine a real national emergency were set upon us with Vladimir Trump and his Congressional lapdogs reigning supreme ~ Oh, wait! That's yesterday's news . . .
1
The culture of lying has permeated our society so deeply it is a wonder we do not yet have fighting in the streets.
Kavanaghs multiple accusers said he gang raped regularly, molested almost constantly and staggered throughout his youth as a wayward drunk.
The FBI top echelon conspired with the Justice Department to lie and deceive not only a FISA court but the court of public opinion.
Windbags like John Brennan and Jim Comey have become media sensations due to their telling stories when they sworn not to tell stories. Liars, cheat, manipulators.
The lying has sunk deep into our society as is evidenced by people like Jussie Smollett creating a crime scene to blame people innocent of his claims. Did he not realize he would be hurting people. People ! For what his career ? Now the way I have seen things this slug will become famous and his sickening personage will be on TV or the movies or the Academy Awards.
The media seizes on these aberrations of the truth. They don't apologize, they just move on to manipulate and influence the next story.
Now several states will allow their liberal attorney generals, govenors whatever to try and convince a liberal judge somewhere as predicted by President Trump will issue an injunction and then more back and forth. In the mean time the illegal immigrants will continue to flow unimpeded over our porous border.
How many are enough ?
Are we to feed all the poor of the world ?
Won't that take away from our children ?
4
@Tom ,Retired Florida Junkman you'll be happy to know the number of illegals is going down. your fears are misguided. you can smile again. cheers.
Let us pray for the continued health of RBG.
3
I foresee SCOTUS deciding the case 5-4, with Roberts swinging the ruling against Trump. It think it's going to be impossible for Roberts to accept the kabuki Trump has brought to this (especially his imbecilic, offhand comment that the emergency declaration was unnecessary); he'll size up the charade as an attempt to maneuver around Congress and its appropriation authority.
The facts of the case lend to a simple solution, and the 5 justices who will rule against Trump will decide that a cooked-up emergency is not an emergency, that even a broad, ambiguous statute, as the one invoked is, does not empower the president to create an emergency out of thin air. Period.
And it is a viable argument that to allow this declaration to go forward means emergencies are whatever we want them to be. It's national emergency time, so lets divert military and other funding to go plant flowers. Flowers take in CO2, which there's too much of in the atmosphere, and "exhale" oxygen.
It's national emergency time, so lets divert congressionally authorized money to put signs along rivers and beaches warning everyone that water can have dangerous consequences.
The problem with Trump prevailing is the very problem that Trump has represented all along: his funhouse of mirrors distortion of everything that is real.
Maybe the next president will declare the Trump administration's damage an emergency.
Now that would be real.
1
I pray that Chief Justice Roberts has the same sort of conscience as David Souter
1
America started to die when it elected Ronald Wilson Reagan forty years ago. Donald Jonathan Trump is a strong intensely bitter and almost poisonous cup of coffee.
Forty years of burying your heads in the sand means America needs to find its identity before it can help us find the solution to our existential problems.
I really don't like the odds but if America stays tied to its new allies maybe with America, Russia, North Korea, Saudi Arabia and the Philippines out of the way we may figure out solutions.
We could really use American ingenuity and talent but until it realizes conservatism and its incumbent greed and the GOP and its ne'er do wells animated by greed and trouble making we will have a much better chance without the USA sabotaging us from within.
2
From the beginning, it seemed fairly obvious that Trump considers himself a "disruptive innovator", no different from Amazon or Uber. So as odious as I find him, his behavior actually fits a fairly predictable pattern: find a rule or tradition and test its limits. Don't ask for permission -- and don't seek forgiveness--just blunder forward and let the lawyers and policy makers wring their hands and stay one step ahead of he law enforcement community. It worked for Amazon when it set about to destroy main street retailing. It worked for Uber when it decimated medallion cab services. And the list goes on. He's of the age, like it or not and the exquisite balance the founding fathers had in mind, and the long standing legal traditions which protect it, are being stood on their heads.
I don't understand the concept of 'second guessing' the President. This article is not the first in which I've seen this absurd statement. President Trump states clearly there is no emergency.
IMHO this Trump's declaration does not pass the test; it is obvious with or without constitutional law 101!!
This guy is vicious in his mindset; this is probably why he is involved i so many law suits...
Do you really, really want a bunch of unelected judges to decide (by a 5 to 4 vote) major matters of foreign policy and immigration, and to dictate to the president and congress what is a national emergency on our border and how to deal with a process in which millions of foreigners flout our laws and simply march over our border in what they brazenly refer to as a reconquista?
Is having cheap labor and an ample supply of maids, nannies and gardeners worth the long term risks implicit in the process of thus diluting or in places superseding the coherence of our nation's culture?
2
short memory , Trump himself put 2 new Supreme court justices and that's what he stated declaring the "Emergency" that these guys are his placement and in today's world its wishful thinking they will go against the tweeter president!
Kiss principle. Congress asserts Art 1 Sec 1, reputes the non-delegation doctrine, repeals the National Emergency Act.. Zero ambiguity. Case closed.
I'm not concerned Trump's use of emergency powers will be a "loaded weapon" for future Presidents. Trump is an anomaly. We have never had a President as reckless as him, and perhaps I am seeing the future through "rose colored glasses"... but Americans will never make this bad a choice again.
35
@Tom after the Bush Jr. administration I was naive enough to think just like you. Apart from making bad voting choices, there is a lot to be fixed.
I ´m from Colombia, our system is far from perfect; but to give you a hint, many of the rules you Americans have are pretty much illegal around here.
10
@Tom
I wish I could agree with you but I have no such faith in the American electorate, nor in the Republican's will not to undermine it.
That said, most of us here in New York City were all too familiar with Donald Trump and his pastime when he decided to run for office, which is also why we overwhelmingly didn't vote for him.
We also tried to warn an America that was too busy being dazzled by his TV-persona to recognize the danger that lurked beneath.
Too bad. And too late now.
28
@Tom
The Americans that made this bad choice had plenty of help from the Russians. It happened once, it can happen again. Trump is more than starting to look like Vidkun Quisling, the infamous WWII Norwegian traitor.
18
Robert Chesney might be tackling a problem beyond the capacity of the Constitution.
If we were tasked with writing a new U.S. Constitution, examining the whole history of the American government, we might see some mediocre presidents, and some evil. We have no assurance the next will be a Martin Luther King, Jr., but, rather more likely, a Bush, Johnson, Nixon, Trump, Harding, etc.
We know well-enough how to child-proof a home, but how to president-proof a government? Chesney might be warning us that the SCOTUS does not have adequate answers.
Don't expect correct government -- only children and philosophers believe in such pleasant fairy tales.
2
All of this assumes that Trump will obey the courts if they rule against him. Remember, part of what he needs to do is to extend Presidential power into creeping dictatorship. If he does not do that, gradually becoming President for Life, then eventually, he, Don Jr. Ivanka, Eric and Jared are going to do some serious time. It could help to defy the Supreme Court at some juncture and get away with it. This fight could be a winner for him either way: If the Court gives him, in effect, dictator powers, then he wins; or if the Court denies him dictator powers, and he defies the Court and gets away with it, then he wins. The Republican Senate of course plays a key role, but we know by now that they will follow him into dictatorship, with a few (only a few!) expressing concern occasionally.
4
Where is the danger for courts?
The professor suggests that courts will hesitate to second guess a president on whether there is a national emergency. He notes Trump's claim that there isn't one.
But also Trump has had 2 years to declare a national emergency and congress under Article l Section 8 could have declared war for an invasion from Mexico any time. Neither has happened.
So why would a court have the slightest doubt or need to guess on Trump's claim that there is in fact a national emergency?
Trump and congress have already spoken.
A court need not stress, only reminding Trump that both he and congress have determined that no emergency exists.
6
“The deference tradition exists for good reason. The executive branch as a whole possesses access to information, expertise and experience that are critical for sound policymaking, and to at least some extent our legal system allocates responsibility for military and national security judgments to it.” This is true, as the author states. But what about a President who ignores this well researched and coveted information, and instead, pushes ahead anyways to achieve a political rather than a security goal. Will all of the judges be able to take this mitigating factor into account when they reach their decision? Can it be proven that Trump time and again dismisses his security briefings? Will he be given the benefit of the doubt despite the long anecdotal and documented history of him challenging his own advisors and siding with Putin’s and other adversaries’ preferences? To ignore the current President’s behavior when issuing a judicial ruling is a form of judicial malpractice, at the very least. May Chief Justice Roberts rise to the occasion.
3
Or, the courts might just say: Congress, you created this problem when you passed the National Emergencies Act so now you can fix it by rescinding or otherwise amending that law. Further, you can stop passing bad laws and then expect us to fix them for you. In other words, DO YOUR JOB!
The deeper issue here is the way Congress, almost from the start but in earnest since FDR, has ceded its power and responsibilities to the Executive branch and then, when things go wrong, they turn to the courts to fix the problems they created (instead of fixing them themselves).
This will likely go the way of the so-called Muslim ban. The Ninth Circuit will, as Trump said, put it on hold and then rule against it. The Supreme Court will likely and rightly overturn. Trump is simply following a law passed by Congress. The Court could rule the National Emergencies Act unconstitutional, but that seems unlikely. Roberts tends to defer to Congress (as he did in the ACA cases) so I expect he'll say something like what I said above: You created this problem Congress, you fix it.
5
@J
Did you even read the article? there are numerous criteria that have not been met in order for this "emergency" to meet the standards set forth by the law.
The law itself is not the problem, Trump's actions are.
8
@J The only issue I have with your statement is the history. It all goes back to Hampton v US (1928) when Congress outsourced lawmaking to the Executive and SCOTUS affirmed.
@Mark Not only have I read the article but I've also read the law. The National Emergencies Act does not specify any criteria as to what constitutes an emergency nor does it impose any obligation on the president to even make a case. All a president has to do is say its an emergency and it is. So, the article says that a group of Texans is suing and claiming as "an initial matter ... that there is no real 'emergency' here as required by the National Emergencies Act." The only thing required by the National Emergencies Act is that the president say there's an emergency and that requirement has been met. This argument will fail probably even in the Ninth Circuit. The second argument starts from the premise that the declaration of an emergency is legal, but questions the financing which would require the use of the armed forces. This is a stronger claim and I would expect the Ninth Circuit to go down that path or some version of it. But in the end, I suspect Roberts will defer to the chief executive when it comes to deploying troops and defer to Congress when it comes to amending the law.
Or Congress could do its job and pass legislation that more precisely defines a national emergency.
8
@Steve M
You don't understand, Steve. Legislatures thrive on passing vague laws because they enable the legislators give something to everybody and to pretend that they have dealt with a problem, while actually passing the buck to federal judges who are election-proof.
But the courts often thrive on enjoying the governing powers thus dropped in their laps and muddying the waters by ducking the issue with devices like lack of ripeness, standing, abstention, or ad hoc case-by-case adjudication (which precludes formulation of definitive statements of binding law).
Thus in Penn Central Transp. Co. v. City of New York (1979), SCOTUS explicitly confessed that it had been "simply unable" to state a coherent rule of law stating what kind of extreme government regulatory conduct goes "too far," and thus becomes a disguised, uncompensated taking of private property. And the dogfight over affirmative action began with the wretched De Funis case (where the court ducked the issue on grounds of mootness), and then muddied the waters some more in the Bakke case which gave rise to an incoherent, loophole controversy that is still going on. And do I dare mention the subject of abortion which has also been actively with us for decades and -- whether you are pro-life or pro-choice -- has poisoned the political process?
And so, if legislatures could be persuaded to do their job we wouldn't have the problem you deplore. But the chances of that happening are somewhere next to zero.
1
@Steve M With McConnell, forget it!
The simple answer going forward is to repeal the law or tighten the restrictions on what qualifies as a national emergency. Perhaps a review by a 9 member congressional panel needing a majority vote or some other method of review. Much more defined rules would server to limit the laws use to real emergencies. None of this will help this time around, but whichever way it goes in the courts the law needs to be changed.
1
@Dstorm
An "emergency" needs to be something that would convince any court of its existence and urgency, not an arbitrary claim coming out of the Oval Office just because the current resident wants to speed things up.
Only a true moron would think chains can be pulled for pure entertainment. Trump has no idea the fire and matches he's playing with.
I respect Professor Chesney's concerns for the Courts' tradition of deference to the President, but there are plenty possibilities for a narrow ruling that would achieve that end:
1) Even if there is an emergency, it doesn't require the use of the armed forces;
2) The President's discretion in declaring a national emergency is narrower where Congress has recently addressed the issue;
3) The President, extraordinarily, has admitted there is no emergency in this instance.
Any or all of those would do the trick. Let's hope Justice Roberts sees things along these lines. Or, I'd be OK with a broad construal of the President's right, since President Harris may well need that to combat climate change. That's a real "emergency"--is anyone in our government paying attention???
2
As I understand it, the rationale for the National Emergencies Act was that one person (the President) may act more quickly than an unwieldy institution such as Congress, not that s/he is privy to information that cannot be shared with (say) Congress.
If this is so, then it follows that the Act is applicable only if opportunity for an effective response to the event(s) would be lost by delay. In other words, a genuine emergency requiring urgent action is appropriate, but not a situation in which the normal deliberative body has the time to consider the options and make a choice (which may be to do nothing).
It seems foolish to expect that judicial review will be faster in the case of a genuine emergency than properly informed legislative review. Therefore, what we have here is a Trumped-up 'emergency' concocted by a fool, not a genuine emergency.
7
All the argument is moot.
Just like in Gore case in 2000 when states’ right champions of Republican SCOTUS didn’t want Florida to count votes — They will again uphold President Trump’s authorit to move fund around.
1
Via Trump's rambling remarks, this will reach the Supreme Court. In order to save tax payers money, get it there.
Perhaps the SC could follow their Bush v Gore logic and say that no you can't do that, but don't be thinking this is a precedent or anything...
The courts sit behind sadists with guns. They fear nothing because they are the law. They do not care that their system is a joke.
1
Since the Republican traitors in Congress refuse to act, the States and the people must do so. Trump is taking a meat cleaver to the very essence of the United States of America.
6
Good points all by Mr. Chesney but there is also a third way, which could avert the dangerous precedents he analyzes: Declare the National Emergencies Act itself unconstitutional. By giving the president the authority to re-purpose money allocated by Congress for other projects -- no matter what the reason --Congress exceeded its authority to alter the contractual responsibilities of the executive and legislative branches. Congress cannot do that, even if both Congress and the president want to do it. Only the people can do that, via the amendment process. Such were the clear and never disputed precedents established in Marbury v Madison (Re: Judicial Act of 1789) and Dred Scott v Sanford (re: Missouri Compromise) among others.
True, these were extraordinary decisions by the court, but this is an extraordinary power grab by the president. By ruling the act unconstitutional, the court need not render judgment on a president's interpretation of an emergency. The idea that Congress cannot respond quickly enough to a national emergency on a case-by-case basis is preposterous. It's a matter of will, not time, and if the will is not there, it's not something that can be deemed a true emergency. Even the response to the 911 attacks, with the prospect of similar terrorist attacks a clear and present danger, went through Congress.
11
Even if he could understand the concept laid out here, and I very seriously doubt that he can, this President wouldn’t care.
3
@celia And neither would the ignorant masses who support him.
Lawyers clap hands in delight, with years of lawsuits in sight.
Legal chaos cooked to order, for our troubled serpentine border.
While our patience fades and wilts, millions will fight over these forlorn stilts.
1
The Democrat and Republican failures (for years now) are the cause of Donald Trump's "Emergency." The fault of all this is not Donald Trump, but with the two major parties (only parties). They deserve all the blame and the NYT and their ilk want to only focus on Trump. Put the blame where it belongs!
2
@Joe sorry but all this involving the wall and the emergency declaration belongs to trump and trump alone. now if you want to say Congress has ignored/done nothing regarding immigration reform. then I agree. trumps wall is and will always be a campaign promise.
7
@Joe So, something is the fault of Congress if you don't like the outcome? What Trump wants and what Congress proposes are never going to be one and the same, nor should they be. Trump did not get his way with the wall, so he is overstepping his authority (whether it is legal, we know that it is unAmerican and frankly totalitarian). If Trump can do this, then the next Democrat president should declare that global warming is a national emergency and then allocate 8 billion dollars to solar and wind projects and try to buy out the remaining coal companies.
1
If this actually makes its way to the supreme court, it seems pretty likely they'll rule in Trump's favor. If Trump says there's an emergency, and there arguably is one (70,000 Americans dying per year of overdoses, some 10-20 million people here illegally etc.), Trump wins because the judiciary will recognize that it's not the job of the judiciary to be overriding political decisions of elected officials where there isn't a clear answer. SCOTUS will probably let the process drag out through Trump's first term in order to avoid having to decide the issue if possible, so Trump will have to win reelection in order to have his border wall built. Since Trump is more likely than not going to win the election in 2020, it seems pretty likely he will eventually build the wall. It will be interesting to see if the wall performs as advertised when it is built. Apparently all the experts say it will not do a thing to stop illegal immigration and curb the trafficking of narcotics over our southern border. Maybe the experts are right; but I suspect they are not right because they likely first arrived at the conclusion (the border wall doesn't work) and then found the facts to justify the conclusion (e.g., most illegal trafficking and immigration supposedly comes through the points of entry, not the areas that will be secured with a wall - ignoring what seems to be the case that we don't really know for sure how the drugs and people get through our border).
1
@Bill
"but I suspect they are not right because they likely first arrived at the conclusion"
Cool. Bill provides an example of what he's talking about.
2
This is the latest attempt by Trump to dismantle the Constitution, so that he can rule by fiat, regardless of the will of the electorate. He is trying his hardest to drag us down the road ending with him as a despot "President For Life."
He MUST be stopped, by any means necessary.
16
@BW
"By any means necessary" is code for violence and assassination? Careful what you wish for.....
1
I suspect this case will produce several opinions,but only one result.
It is difficult to see, for example, Justices Gorsuch and Roberts joining on the reasons more liberally inclined Justices might have for quashing the 'emergency.' But no conservative worth his salt and no strict constructionist can swallow the dog's breakfast of lies that Trump has founded his declaration on. Nor can a believer in the separation of powers accept this blatant end-run around Congressional refusal to fund.
What is monstrous in this as that a GOP-controlled Senate has accepted the naked usurpation of Congressional powers. The Court should not have to, once again, do the work that Congress is too cowardly to perform. That is the real tragedy for the Republic.
22
Let's be clear: The trump regime has little or no interest in information, expertise, experience or sound policymaking. It is a Fox News reality TV side show presided over by a dangerous nincompoop. The courts should act accordingly and protect the Constitution.
14
Robert Frost: "Something there is that doesn't love a wall, that sends the frozen groundswells under it and makes gaps even two can pass abreast." This wall is meant only to fuel racist hatred and xenophobia - rather than welcoming our refugee brothers and sisters - create this artifice of hate. There is no crisis at the border other than human lunacy. MLK said of the Berlin Wall, "There is a wall and god's children are on either side." Real emergencies in the US? Education. Infrastructure. Environment. Endangered species. Poverty. Obscene distribution of wealth to the top 2%. Corruption in politics. Defunding of all social and health safety nets. The assault on dignity for all by an insane few. @johannaclear
11
I believe it was around midterm elections time when Trump deployed troops to deal with the "caravans" that were potentially weeks away from even making it to the border. That was not enough to resist the tide of flipping the house. So he has not successfully made a deal with Congress in his first two GOP control years. And he hasn't made a deal now that the Dems control the house. His brain trust of Stephen Miller has discovered the national emergency route. The Art of the Steal.
9
In Bush v Gore, the Supreme Court said its decision set no precedent. A ruling against Trump with this caveat would avoid the risks of a setting a precedent while sending a clear to this president and clearly counsel future ones to only declare emergencies in when the underlined faces are beyond dispute.
2
I fail to see this as a danger. The court could simply establish the executive has exceeded his powers, which he most certainly is. And the landowner's argument is sound. There is no need for the military. There may be a standard set, a kind of definition for asserting an emergency. I agree this may require threading a needle. However, it's just as dangerous to allow the president to run roughshod over the separation of powers. He is clearly usurping the legislature's power of the purse. That's not for him to take. It's the job of the court to protect the integrity of the constitution.
7
Constitutional law professor Dawn Johnsen (formerly on the staff of the U.S. Department of Justice Legal Counsel) said this in 5/8/17: "the deference courts traditionally afford presidents is premised in part on the plausibility of some basic assumptions that typically go without saying, but that increasingly are implausible in the case of President Trump: that the president’s decisions reflect a respect for the rule of law, are informed by relevant advisors and information, are based in fact, and are in service of the public interest." For more, see https://takecareblog.com/blog/judicial-deference-to-president-trump
5
Let's just ask John Roberts now and be done with it.
3
Donald Trump exemplifies everything that is wrong with America’s past, present and future. He is most of our countries worst attributes, in the flesh.
9
Congress must not have an emergency measures law without protocols. It is like wearing shoes with the laces untied.
5
Banana anyone? The real crisis is that the Republicans in Congress refuse to do their job in a vain attempt to cling to power. Congress could spank the man-child who occupies the Oval Office anytime it wishes. But, then what would Sean Hannity say? Or even worse, the devil lady? Oh, oh, best to lay low.
7
If the Courts rule for Trump, we might as well tell Congress to pack up and go home because the President will forever have grabbed the power of the purse and the judicial imprimatur to do whatever he wants for whatever bogus reassigns he gives.
7
Well, yes but there has never been an individual as dodgy, duplicitous and dangerous as Donald Trump representing the Executive branch before, so establishing judicial precedents to deal with this extreme Executive branch precedent, is appropriate.
4
@Jeff
The barn door is ajar for more republican trump like characters to walk through.
1
You're missing what makes this case different from the immigration case - money. It may in fact be legal for Trump to declare this a national emergency, but what isn't legal is the ability to use money that congress has refused to give him. That would be taking away the power of congress to control the purse strings and would run afoul of the constitution.
10
I watched the Andrew McCabe interview on 60 Minutes last night in its entirety. And while I recognize this man has books to sell in light of his potential loss of a pension (thanks to Trump's firing of him mere weeks before his retirement date), he doesn't strike me as a guy who is an alarmist. And yet, everything he related in that interview was deeply alarming. Even thinking about invoking the 25th Amendment should have most of us worried about what has been unleashed in our Executive branch that, to date, is not being contained in any substantive way.
Folks, the wall is a distraction to the bigger issue at hand, however un-Constitutional it may be. We have a potential traitor in our White House and no one in Congress is doing anything about it.
Mueller, bless him, is taking down the dominoes one at a time with McCabe's notes in hand, but I gotta say, it's not fast enough. What do you want to bet that fear of interfering with the 2020 election will be used as a reason to not impeach Trump, just as Obama didn't want to make a big deal of Russia's tampering in 2016? Do we really think our flawed election system will oust Trump from office? I have my doubts, and I think we all should.
21
@Sabrina According to NYT, McCabe was fired 26 HOURS before his retirement was to happen. Am praying Mueller report will be released soon and be mostly open to the public.
5
@Sabrina
"Trump's firing of him mere weeks before his retirement date"
Actually it was less then 2 days before his retirement date.
The western world is in grave danger.
Once NATO is gone, the Paris accord finished, Iran left high and dry, trump re-elected in 2020, Israel restores its original BCE borders, and the evangelicals wait for the end times then Putin will turn on trump and the republicans, releasing all their dirty secrets as a coup de grâce. And finally the U.S. and Europe are left in the lurch.
2
@jdsrlf I stand corrected. ;-) Either way, still a crummy, awful thing to do to a career patriot who has done nothing but serve this country to his fullest capacity. Too bad our POTUS cares only about himself and possibly his Russian puppet masters.
1
Deference to presidential judgement implies there is a president and that he is capable of making a judgment. Trump is president in name only, as he is not presiding over our country or leading it, except if it be off a cliff. He exhibits no mentations that might be construed as "judgement" insofar as all of his verbal emissions appear to be the impulsively expelled waste products of a rotting and putrid cognitive process -- in other words lacking in any signs of a coherent thought whatsoever. How can presidential judgement exist in these circumstances?
9
Our nation's electorate elected this unqualified, inept man to be the president and is now getting what it deserves. I'm not worried about the court system doing the right thing. I am worried that too many partisans on the GOP side will not set aside party in favor of country.
9
@Bruce Egert
The Electoral College put him in place despite losing the popular vote by 3 Million. It's time to get rid of it.
1
I have no respect at all for anyone who still supports Trump or his un-American approach to governing at this point.
13
The good professor seems to not be concerned that Congress has already given away too many of its Constitutional powers to the executive (especially regarding defense/war).
It is not some great limit to the power of the President to provide a firm definition of what really constitutes an "emergency" under the Act that granted Presidents this power.
If Trump proves anything, he proves that vagueness in the details will result in danger to the republic.
6
"...As a result of all this, we are on the verge of intense litigation over a subtle but critical point: Can judges second-guess a president’s determination that there is an “emergency” under the National Emergencies Act? Even if not, can they at least second-guess the determination that the situation “requires the use of the armed forces” as required by the budget statute?..."
Of course they can.
If not, then the Executive is a monarch, the Republic is dead, and the Constitution is inoperative.
The matter admits of no other interpretation.
13
@Jim Herod
Indeed. If SCOTUS does not reign in this power now, they may never get another chance.
5
Honestly, if all that the president has to do is to declare any thing that he desires to do as "emergency" then congress needs to change the law. The idea that in 2018, a legitimate emergency declaration cannot be enacted by congress in 24 hours is absurd. I mean what do these people do all day? Why can't they be reached for an emergency vote? Surely emergency voting using encrypted secured single use smart phones is better than giving ANY president the latitude that this president may turn out to have.
10
Trump's wall will never be built. The damage it could do to our constitutional system is another matter.
5
another words, give ample deference when a liberal is president and declare actions of a republican "an exceptionally rare instance in which deference fails"
1
@biggy You got it backwards. Just watch what happens when the Supreme Court gets this compared to what happens when a Dem President declares a climate crisis.
4
@biggy
That is not what the article said. Nor was it even implied.
4
@biggy
Have you already forgotten what Mitch McConnell and the Republican Congress did to Obama during his entire administration?
Time for a memory crash-course.
7
Another week, another journey into surreality thanks to the Man-Baby president... It's frankly exhausting to process Donald Trump's surfeit of unreason. Of course not for the MAGA-hat crowd or Lindsay Graham, the newly appointed presidential love-slave, as this behavior simply meets expectation. They want a King, an emperor, an unchallenged executive branch, because it matches their inner Father-world where truth obtains not from reason or well-debated consensus but by patriarchal decree. Whatever, we're all just counting down the days at this point.
6
In this matter, Trump is simply the re-incarnation of the ghost of Roy ( "don't tell me what the law is, just tell me who the judge is" )
Cohn.
Concerning future cases, if we have another person in the oval office as crazed as this guy, it will be game over.
The courts must respect the Constitutional issue here and rule against Trump. His staggering over-reach makes it a pretty simple decision. Also it is what he wants as he searches for issues to inflame his base next year.
4
Could it be that the "rule of law" will be exposed as an illusion, that the law is just a tool for the rich to retain control over the lives of the poor and the powerless?
Goodness knows, Trump has exposed much of the far right Christian political machine to be exactly that, an immoral pretend religion, hiding their blind lust for money and power and rule over women behind sanctimonious religiosity.
Hugh Massengill, Eugene Oregon
10
One presumes our courts are disposed to discriminate facts with enough precision that they won't overshoot the mark.
But to suggest, as Professor Chesney does, "The executive branch possesses access to information, expertise and experience that are critical for sound policymaking." overlooks our recurring experience with this president: Donald Trump does not believe his government or its intelligence services. He believed Vladimir Putin.
If the president dismisses the information, expertise and experience of our career and professional intel community, would a court defer to his gut feeling? or to Putin, especially given the circumstances that stirred the FBI to investigate him?
Yes, the courts are on pretty thin ice... along with the rest of us.
4
Yes, this means an awkward mess for the courts and the chance that the Supreme Court makes another catastrophic stinker of a decision on par with Dred Scott, Plessy v.Ferguson, Citizen's United.
But the real dangers here are to the American people over their system of government ... and of course to Trump.
Make no mistake: Trump is trying to destroy the constitutional powers of Congress. The writers of the constitution clearly did NOT intend for a president to be able to grab federal funds to do anything the president wants by claiming an "emergency," subject only to a Congressional veto override. This idea completely overturns the powers of Congress.
President Andrew Johnson got impeached for defying the will of Congress. Trump is certainly increasing his odds of impeachment, and removal.
If he were not president "individual 1' would have already been indicted for felony violations of FECA, money laundering and tax fraud. Trump is more than flirting with ending up in jail.
9
This is one of the more well-reasoned discussions of the power of the executive and judicial deference that I've read in a long time. I've been an attorney for forty years, and I agree with Prof. Chesney's analysis.
That said, I do take issue with this one statement: "Supporters of President Trump would be most unhappy to find a President Beto O’Rourke or Kamala Harris reaping the benefits of it in the coming years."
Prof. Chesney is granting this court much more respect as an impartial institution that I am willing to give. This court handed Trump a victory on his Muslim ban, on the flimsiest of grounds, and where he produced absolutely no evidence that terrorists had come from the nations included in the ban. I believe they will bow down to him again, with his manufactured emergency.
That said, there is no reason to believe that Democrats would fare better under this Court. The court took great pains to limit Obama's executive authority, and certainly with the addition of Kavanaugh, they will do the same to any Democratic president. Oh, of course they'll work through tortured language of all kinds to distinguish the situations, but understand this: There is no reason to believe this Court will treat a Democratic president with the absurd degree of deference they have provided Trump.
Democrats would do well not to find a silver lining in a Trump victory here, where none truly exists.
10
@Orion Clemens
Good post. But I keep hoping that the current SCOTUs is comprised of real conservatives, not just GOP partisans.
That they will put their money where their mouths are, and respect the Founders' goals of separation of powers and co equality of the three branches.
1
My guess is that this Wall is a test to see if the Justice system will check Trump. If this system full of Republican political hacks, does not check him, I look for him to declare the 2020 election as rigged, if he loses. He will declare a emergency, suspend the election and refuse to leave.
7
This piece goes to great lengths to outline extraordinary - and sometimes scary - outcomes. However, the author doesn't give any reasons as to why any one outcome is more likely than the other.
Rationally, the Supreme Court need not rule any more broadly than to strike down this declaration on the singular point that the President admitted in a national address that he was seeking to circumvent the Congress, because he was unhappy with the outcomes there. Given the court's tendency over the years to rule narrowly when possible, it's the most likely outcome.
Mr. Chesney - you should clarify why you think it's worth exploring terrifying rulings. What rational basis do you have to suspect they'd come to pass? This opinion piece otherwise reads as scaremongering.
1
A majority of people in this country have with reasonable political/social views. They voted for Clinton by 3 million votes over Trump. A majority favors development of renewable energy, believes in science, the problem of climate change, wants accessible education, believes that healthcare is a right, wants reasonable abortion rights, etc. The problem with the Fed government is when the Constitution was written, the southern states would not join the Union unless they could keep slavery and only if slaves could be counted as 3/5's of a person in a census. That count gave the southern states more representatives from their states in the House of Representatives than their the number of eligible voters allowed for in the non-slave states. Plus Jefferson favored small agrarian states over larger states. Thus, we have N. & S. Dakotas and N & S Carolina's, etc. Further, the electoral college weights votes in favor of the small states. Wyoming with 3 electors in the electoral college has a population of 600K, 200K people per elector. In Cali with 40 million people and 55 electors equals 722K people per elector. Thus, Federal structure gives minorities in small states too much power. That means the least educated people in the country control it - a recipe for disaster. E.G., how many people in Wyoming believe the world was created 6K years ago? 50%? Per capita, how many college grads, or post grads live in Wyoming? With dummies in charge, the future will be bleak.
6
As the Supreme Court has historically avoided broad rulings on executive power (the reason the Court has never touched the question of the war making powers of Congress being quiet since 1941 while wars have raged almost without end since), it is almost certain that his Court will find the weakest, least precedent setting reasoning for whatever it decides. If all inferior court decisions are against the President the Court could just refuse to hear the case, an unlikely but not unwise decision. If inferior court decisions divide, the Court may have to render an opinion. The Court's recent history and Roberts' recent disposition would suggest a ruling against the President on excess of executive power grounds, but on the narrowest of causes.
4
This is not about a "wall" at all.
It is about if our courts are now a quasi political branch and not a judicial one to interpret the laws as written by Congress and approved by the Executive branch.
To be sure, the National Emergencies Act, like many others, was sloppily written by Congress and most definitely needs some guidelines about what constitutes an "emergency" and what doesn't as that singular word is at the heart of this issue.
Even though SCOTUS is packed with Republican-leaning Justices, I think and hope Justice Roberts will keep the lawsuits on the path of determination of clarification of the NEA, not abrogating unchained power to a single person in violation of everything our Constitution was written for.
Otherwise, Congress will become just another bunch of people who are assembled for no reason at all.
5
With respect to President Trump’s declaration of a national emergency, the Courts should not even consider such declaration because he signed the apportionment bill into Law that sets the amount of money for the wall (fence, etc.,). Additionally, the President participated in the process leading up to the passage of the apportionment bill and his agreement not to veto it.
The President had three choices, i.e., sign the bill into law, veto the bill, or wait 10 days, etc. Once he signed it, it became the law. He could not then reject it through the process of declaring a national emergency which if it existed, existed on the day he signed the bill into law.
There was no new change on Friday on the border when President Trump signed into law the Bill. As stated by the Supreme Court over 145 years ago in The Confiscation Cases (Slidell’s Land ) 87 U.S. 92 , 112-113(1873 ) , “No power was ever vested in the President to repeal an act of Congress.”
16
Thus, we see the inherent impotence of "constitutionalism" and "originalism" to deal with a malevolent and incompetent branch of government.
7
@Richard Swanson
We haven't seen it yet, and it will indeed be illuminating to read what the "conservative" wing of the Supreme Court have to say about this (to me) obvious breach of the delegated powers.
1
@Lewis Dalven True, but this opinion piece convinced me that those judicial philosophies are intrinsically weak when confronted with Trump-like behavior.
Another issue with the ranchers who will have part of their land taken away, is that Trump's wall or fence will keep the ranchers' livestock from reaching water to drink in the Rio Grande. The wall will also prevent wildlife from reaching water.
Trump makes it clear that he doesn't like animals, whether domestic or wild. The ranchers care about their livestock even if Trump doesn't. If cut off from the river, the ranchers will have to spend thousands to have wells drilled. Trump doesn't think things through and he doesn't listen to anyone.
20
The writer misses the point that this law always has been and should now be declared unconstitutional. No law can give one branch of government powers expressly granted in the Constitution (Article 1 in this case - the power of the purse), to another branch. For example, a super -majority in Congress could not give itself the power to appoint Cabinet members. Similarly these emergency powers granted the president to draw money from the Treasury that has not been appropriated by Congress usurp Constitutional prerogatives that can not be changed other than by amendment.
9
Presumably the Court is familiar with the Schechter Poultry case, 1935, where this very point was made. In fact, the issue underlies the emergency powers legislation which, at the very least, seems to beg requirements set out in the in the Hampton case of 1928.
4
A strict constitutionalist (as is now a majority of the SC) would argue that it is not their job to evaluate whether there is indeed a "national crisis", but only whether the president has the authority to make that judgement. And clearly, the president does. The constitution does not define what that term means; so it is clearly left up to the president to define it himself.
To those that would argue against that, the justices would simply point out that they are simply following the constitution as it is written, and that a process to disagree with the president is already in place, as congress could override his judgement; something that will clearly not happen with the current Senate.
As Scalia famously said, "if you don't like the ruling, pass better laws."
There is no place in the constitution where it recognizes a situation where the president is incompetent and/or the congress majority is complicit in backing him for personal or ideological reasons, thereby abdicating their responsibilities of providing checks and balances.
I am dismayed by what I just wrote, but that's sadly the reality of where we are now.
The constitution has not failed us.
We, the people, have failed by electing representatives who put their own interests, ideology, and party over the good of the country.
17
@Jamie
I agree that a strict constitutionalist would argue that it is not their job to evaluate whether there is indeed a "national crisis" but I also believe that a strict constitutionalist would argue that congress can't pass laws that assign constitutional duties to another branch of government. There was a good example of congress couldn't use a super majority to take over cabinet appointments. In this case congress passed NEA which assigned their Article 1 duties to the executive branch with an extremely broad definition of a national emergency - I would hope a strict constitutionalist would agree that this is not in line with the constitution, needs to be more narrowly tailored and used in exigent circumstances with a requirement that congress eventually confirm the national emergency or end it.
2
@Jamie In effect Trump has said 'I'm calling this an emergency but it really isn't' What else could “I could do the wall over a longer period of time. I didn’t need to do this." mean? How crazy is a court that would not turn him down on that basis alone? [rhetorical].
3
@Jamie I hate to say this but sadly I agree with you. It is heart breaking how we have allowed ourselves to become so polarized. We the people need to do better.
3
President Trump has already transgressed two branches of government --the executive, with violations of human rights of migrants and their children seeking asylum at the border--and Article I legislative powers to appropriate funds, by announcing a plan to reallocate dedicated defense funds in order to build a Wall. Now he wants to use the Third branch--the Supreme Court--for his own purposes. Like Heller, Citizens United, Shelby County v. Holder, Dred Scott, and Plessy v. Ferguson, the cases which challenge Trump's faux emergency threaten to result in serious and unintended consequences from militarizing the border to sanctioning executive overreach. This is NOT about what future presidents MIGHT do, it is about what this President claims he can do.
11
Courts are used to threading the needle in terms of limiting their ruling to that one set of facts, as it did in Bush v Gore. It is Jurisprudence 101 not to give the store away to the executive branch nor unduly delimit its military oversight on the other hand.
Look for a tersely worded opinion that goes to great lengths not to set a far reaching precedent. An overreaching one now can arm Democrats later, so we are all in this Constitutional boat together. When a politician like Donald Trump is at the helm, the other two branches of our gov't are fully aware of their powers and the possible need to contain him.
6
The smart result would be for the Courts to decide that they don't have to look into Trump's emergency declaration as building a wall/fence/barrier is not necessary under 10 USC 2808. They will have to decide that they can go beyond the declaration of the Secretary of Defense but that is easier to do than is the case with the emergency declaration. I expect that this will be the ways the lower courts decide and that the Supreme Court will not hear an appeal. That way Trump doesn't get away with his nonsense and the Courts don't have to worry about the emergency declaration.
1
One consequence of Trump's action that I haven't seen mentioned yet could be a finding that the emergency powers act itself is unconstitutional, which I suppose would invalidate all of the other previously declared emergencies. The courts might be reluctant to rule an whether Trump's 'emergency' is real or not especially since congress has the power to say it isn't, but congress ceding to the president its authority to allocate funding in the first place seems like an unconstitutional violation of Article 1.
7
SCOTUS is not going to get itself in the position of deciding when an emergency is really an emergency. Since Congress has the power to reverse this emergency declaration if they can come up with the votes, SCOTUS will likely rule this to be a political dispute to be hashed out by the other two branches.
3
What is utterly absent from these discussions is any awareness of the background of presidential declarations of national emergency in the US. There have been 58 so far. 32 are still going on. (Obama, for example, had 11; Trump had 3, now 4.) Most have ridiculously little to do with any conceivable national emergency for us. What's alarming is that there is essentially NO mention of this in all these NYT articles and all this discourse.
For some humor, just see the wikipedia list of them (i.e. list states of national emergency declared by US presidents).
2
@carl bumba:
Here is the list:
https://en.wikipedia.org/wiki/List_of_national_emergencies_in_the_United_States
It seems that these emergencies have something to do with blocking a transfer of people, money or property, not with shifting congressionally budgeted money around, except for Trump's.
4
@Steve Bolger
Thank you. But 'blocking a transfer of people, money or property' are also not worthy of national emergency declarations. It's just not right that we hear nothing about these. But with Trump (who I am no particular fan of), people act like the sky is falling. And why do WE have to do the basic, background investigation of the issue? Even a high school report would start with a brief history of the matter! I must have read six NYT articles on this with ZERO mention of its history. We homeschool our kids and I'm inclined to use these biased articles as an example of journalistic propaganda. (But I don't trust my own objectivity enough to do this.)
3
@carl bumba
Or maybe the NY Times did report on the history of national emergency declarations, and you just didn’t look:
https://www.nytimes.com/interactive/2019/02/15/us/list-of-national-emergencies.html
4
Read Miller's response to Wallace, changing the narrative: Wallace asked Miller how building the wall could possibly be a national emergency if Trump said he "didn't need to" declare one. Miller's response: "Like past presidents, he could choose to ignore this crisis, choose to ignore this emergency as others have," Miller said. "But that's not what he's going to do." This is the way Trump is going to go around his previous statement, this will be Trump's argument.
2
Once Pelosi became Speaker, her main goal was a power play. She proclaimed that not one penny for the wall and demanded that not one member of her party in the House even dream of compromise. She was willing to close the government just to exert power. A deal could have been cut. A portion for the wall, increase other areas of boarder security and use other technologies to guard the boarders. We could have looked Israel boarders or India and Pakistan. They have some experience in this. Once the budget did get signed there were a lot of back slapping and high fives. The never saw plan B until It hit the headlines. Perhaps some of those in her party are thinking they will think the better part of valor is to drop back ten and punt. At one time the Democrats voted for over three hundred miles of wall. They could come up with a part, not a token part and authorize its construction. He gets some but not all. Then we don't have to go through all this drama and maybe even save money that would go to lawyers and court fees. The Democrats could say they chose bipartisan legislation over court conflict and Trump can say the wall is started and he will work to get the rest later. One thing Pelosi forgot in all of this is that any legislation she passes in the House, still has to go through the Senate and White House. She probably couldn’t get a bill for mom's apple pie passed now.
1
@Ron
You seem to forget that Nancy Pelosi wasn't born yesterday and isn't in this just for fun.
She's a very skilled politician who also knows the mores of the U.S. Constitution -- which is more than what can be said about Donald Trump.
And how you can even think that this is only about a "power play" shows how easily you've forgotten what this president and a knee-jerk Republican Senate has been doing not only now, but during the entire Obama administration.
Besides, wasn't Mexico supposed to be paying for this wall??
6
@Ron
Stop drinking the Kool-Aid. The President made a request of Congress. Congress said no. The President moves on.
That's the way it is supposed to work under the US Constitution. You prefer a dictatorship or even a Parliamentary sysem of government. May I suggest you move somewhere more to your political liking. You could try Canada where the PM, under a majority government, could act as you would like the American system to operate. Until then, might I suggest a bit of reading.
The courts have long recognized a declaration against interest is a very powerful consideration of the truth. When Trump voluntarily stated that the emergency is not an emergency, he should be held to it because it is likely to be true. He was not compelled to make such a statement. There is no reason to overthink the problem. Common sense and rules of evidence are clearly sufficient to make a decision on a case-by-case basis. There is no need for the court to go out of their way to set judicial precedence's.
8
Even if SCOTUS rules in his favor, it will take a long time before the funds are released, land is secured and a construction firm is chosen. By then Putin will be president and we'll be in a war with France and Germany and too busy to build the wall.
6
2021-2015: Global warming is a national emergency. So are poverty, healthcare, gun violence and taxation. You go, Donnie and Mitch. Set that stage.
9
Ironic. Another constitutional crisis caused by Trump, according to NYT. I think it's irresponsible of this paper to promote the idea that Trump is engaging in especially reckless behavior here that may shake the foundation of our entire system, undermine branches of our government, set dangerous precedents, etc.. This mini state of emergency, declared by NYT (again), will be reflected in its readers' comments (again). Many if not most will be fearful, some will be apoplectic and they all will be similar to those from the other NYT editorial articles that say basically the same thing about Trump's state of emergency declaration. In none of these articles have I seen a clarification about how common and focused presidential state of emergencies have become - and this is irresponsible. There have been 58 declared states of emergengies (Obama, for example, had 11; this one makes 4 for Trump)... and 32 are still active! And who knows how much we pay for them? The grounds for these declarations are often so obscure and nonemergency-like that it's comical. For some humor, just see the list of them in wikipedia:
https://en.m.wikipedia.org/wiki/List_of_national_emergencies_in_the_United_States
11
This and Bernie announcing his candidacy in the same day! Doing the news on my day off was a good call today.
1
@carl bumba
Why, oh why is the standard response for anything this president does ALWAYS involves Obama?
Just for the record.
Obama never pulled a number like this, because FIRST of all, being a Harvard grad, a lawyer, and a then a Senator, Obama knew about the U.S. CONSTITUTION -- which is something which Donald Trump can't say.
And secondly, it's unlikely Obama would be able to get away with anything like this because Mitch McConnell swore to obstruct him from the first day of his administration to (which he did!).
54
@N. Smith
That was just the most recent, counter-example. (I voted for Obama twice - and more if I could have...) Bush Jr. declared emergencies 12 times; Clinton 9 times... just check the list and you'll see how off-base many of these Trump loathing reactions are. He's not so exceptional, after all. Consolidating power is paramount to truth.
10
Trump has no understanding of the Constitution. He is only concerned with his massive ego. McConnell and his Republican lackeys know that Trump is bringing complete legal chaos onto our nation but they couldn't care less. They simply reject the rule of law.
5
The best solution would be for the Supreme Court to declare the National Emergencies Act unconstitutional based upon the separation of powers argument. A correct law should require the affirmative approval of Congress after perhaps one week, to continue the emergency. That would probably pass constitutional muster.
7
While Republicans in the Senate can easily rewrite the National Emergencies Act as "The National Act of Presidential Convenience," they may have trouble getting it passed in the House. To win passage, Trump may have to promise not to deport the Dreamers for at least five years and to allow all the confiscated children at the border to be adopted by hard-working white folks in the nation's heartland.
1
The silence is deafening, where are the voices of the “TeaParty,” the fiscal hawks, and the “religious” right? Were all of these outspoken groups just lying? Did they all just lose their backbones? Who would ever take any of them seriously again? And I am a registered Republican...for now. No wonder there has been an exodus from the party. Destroying the Republican Party may be the one good thing that comes from this president.
7
@NonPoll: They were trying to clear the way for God to administer the US. Trump was their Godot.
2
“When I use a word, like "emergency”" Humpty Trumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Trumpty, “which is to be master—that's all.”
4
When I read Alice in Wonderland as a child, I thought it all quite fanciful and ridiculous. I know see the it was merely prescient of the workings of the present administration.
Deference is not abdication, and the judiciary cannot abdicate its responsibility to the Constitution. Article I reserves the power of the purse and the power of legislation to Congress. Trump is engaging in a very blatant abuse of his emergency powers to do a end run around Article I. Trump himself has about said as much in public...bragged about it, even. Many his conservative allies have acknowledged as much and criticized Trump on this issue.
At some point, the courts have to actually look at the evidence, and evidence is pretty clear there is no emergency. The courts cannot let themselves float away from reality by using "deference to the executive" as an excuse. They can limit the risk of bad precedent by making it clear how extreme the facts are in this case. But the courts - especially the Supreme Court - are an useless institution if they are so mired in legalistic fiction that they cannot even perform their basic, crucial job of ensuring the fidelity to the Constitution.
6
Is it possible for Congress to legislate away it’s responsibilities as defined in the Constitution? If true-is this not tantamount to rewriting the constitution through legislation? If the constitution is truly the supreme law of the land then such exercises are unconstitutional and illegal on their face.
Therefore Congress cannot delegate its war making powers to the president.
Therefore Congress cannot delegate its budgetary control to the president, even in emergencies.
Therefore the Supreme Court can never show deference to the president when his actions are counter to Congressional intent or constitutional restrictions.
But we have seen over the last forty years that both the Congress and the Supreme Court can and have violated the plain language of the Constitution. The remedy for these types of violations was always centered on a court that would push back strongly on the other branches of government when they over reached. The problem is that it is the president and Congress that picks the Supreme Court justices and they have been picked for their partisan flexibility rather than their constitutional fundamentalism. This has caused the court to fail in its function of oversight which in turn has allowed the other branches to move away from the constitutional model and toward expedient forms that are not conducive to the democratic process. This lack of oversight has allowed moneyed interests as well as foreign powers to remodel our government to their own ends.
6
@Bobotheclown The legislation you are referring to has passed constitutional muster with the Supreme Court. “ The Supreme Court ruled in J. W. Hampton, Jr. & Co. v. United States (1928)[1] that congressional delegation of legislative authority is an implied power of Congress that is constitutional so long as Congress provides an "intelligible principle" to guide the executive branch: "'In determining what Congress may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination.' So long as Congress 'shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power”.
Given Mr. Chesney's points about the restrictions on how military monies may be spent, I can see a court ruling narrowly that any military budget cannot be spent on a border wall, avoiding the question of whether there is an emergency or not. Personally, I would like to see this declaration of Trump's shut down in no uncertain terms, but as a political issue, congress should take on that task. The judiciary tends to avoid the thorniest questions.
2
In regards to Presidential deference, I would be happy with erring on the side of caution when handing these powers to one person. We can see everyday how far this president is willing to push against, and ignore the precedents and norms adhered to by previous occupants of that office.
Imagine a SCOTUS ruling in favor of this “emergency”. What would the next emergency look like? An election set aside due to Chinese interference in the election? Congress suspended due to the “witch hunt” harming the country?
This is our crossroad. We either head further down the authoritarian path, or we drag ourselves out of this mess and fix our broken institutions.
162
Our institutions have been broken to the point where they do not work. I don’t think there is a way for the people’s voice to be heard in a way that it will fix the system. I think the Republicans have already achieved what they wanted, a rigged system that keeps them in power no matter who is elected. It may already be too late.
9
Fine analysis here of the serious dangers in this litigation, prompted by the chief executive's feckless behavior. True, Mr. Trump's arguments strike us as "disingenuous;" but what of the arguments advanced by the Congress? Is the stubborn resistance of the Congress to fund the "wall" supported by valid governmental concern, or rather by partisan desire to defeat the President in 2020? Is that sufficient reason to put the Republic through the potential disaster Professor Chesney warns against? Is the Congress itself not partly to blame, just as the president is largely to blame?
1
Perhaps the laws need to be judged unconstitutional with the message back to the legislature that either they have to do their job and make the tough decisions or craft a better law to define when and how the president can declare a national emergency and what actions the president can and cannot take.
2
This is another example of Trump's recklessness - forcing a court decision in an area of law best left untouched. How do you come up with a legal definition for any and all forms of emergency?
It is reminiscent of Judge Potter Stewart's definition of pornography - " I know it when I see it". I do not see an emergency at the border.
4
The President keeps telling the truth and we refuse to believe him:
He openly admits he didn't need to declare a national emergency, but we will play out the legal and political consequences of a national emergency for years.
He declares openly that he was proud to shut down the government and yet we blame the "gridlocked" Congress.
He freely admits he fired James Comey because of the Russia investigation but we continue to question if he obstructed justice.
He finally admitted that he actively considered business dealings with Russia well into the 2016 presidential campaign, yet we continue to debate whether or not his tax returns might be relevant.
He admits he prefers Putin's findings to those of his own intelligence agencies, yet we question if the Russians may have something on him.
He admitted to paying hush money to women with whom he'd had affairs but we turn ourselves into knots trying to determine if he violated federal election laws; and we totally forget that we used to actually care if our Presidents had affairs in the first place.
Really, if today he openly admitted that he'd totally created this border emergency out of thin air and that he'd done it simply to flex his muscles and impress his base, would it change one single thing?
We behave crazier when he tells us the truth than when he lies.
9
“We” may be the word that describes his supporters and his congress, but “we” doesn’t describe all of “us.” Most of us are attempting to set the rest of “we” straight on how this president is running our country into the ground. They see it, but those rose colored glasses they wear cover up all his misgivings and criminal deeds. We need to send him back to whence he came, ASAP!
@S Jones. Perfect! Trump has been almost completely transparent about what kind of person he is and what he values. The unfortunate reality is that too many voters decided to ignore his very honest statements about himself and his intentions. There has been no shell game, no bait-and-switch, no misleading campaign rhetoric. Conclusion: we ignored him when he told the truth and now we have to live with our own foolishness.
Get rid of the Electoral College so in future we don't have the situation of a minority controlling the majority.
9
@Into the Cool it is not enough to get rid of the Electoral College. It is time that representation in the House is equalized. The ststaes with larger populations are vastly under represented in the House and this is the part of Congress that is supposed to most closely represent the people. The Senate also is skewed representation, again with minority-minority rule, yet it sets the agenda for the judiciary for decades to come.
Equalizing Representative would go a long way towards improving the equality of the Electoral College. So would eliminating the 2 electors each state has for the senators.
2
I'm sure Republicans who are totally in favor of Trump's emergency declaration as a means to the end of dealing with the non-emergency at the border will be overjoyed when the next Democratic President declares that restrictive red-state laws making it ever more difficult for residents of those state to find abortion doctors are a national emergency, too. And pursuant to that declaration, orders the military to construct and staff abortion MASHs all over red states. Yeah, I'm sure principled Trump supporters would have no problem at all with such a scenario.
3
A "National-Emergencies-are-in-the-eyes-of-the-presidential-beholder" ruling is WRONG, WRONG, WRONG!
Challenging (i) what constitutes a National Emergency, (ii) deferring the decision to the president, (iii) usurping Congress's power over budgets, and (iv) whether the intervention is reasonable aree all necessary, hopefully winning arguments. But they are not sufficient. The risk to democratic governance is much larger.
If trump can arrogate to himself unfettered powers to declare and fund National Emergencies then this trumps America's system of checks and balances, constitutional authorities delegated to the three branches of government and forever removes the judicial system as an arbiter over presidential excess. The only abuse remedy becomes presidential elections every 4 years.
Consider trump declaring National Emergencies to
-Build a new White House--because the current one is not up to his standards;
-Save the coal industry with hugely costly plants and coal driven vehicles --because coal's decline undercuts US energy security (and employment in key red states)
-Obesity interventions funding school lunches--sodas, burgers and fries for all--because obesity is indeed a National Emergency.
-Ordering Russian to be taught in public schools because...
Not funny when one grasps what is at stake if the wall is funded and built.
Government by imbecilic presidential decree ...and you were there!
2
@Chris Parel Sad preaching to the choir when those who can do something (non-tribal)choose to stay outside the church
This article raises a bogus argument. What existential threats would the nation ever face if the courts decided that the president does not have spending control/authority? There is NO such threat. None.
I pray that the courts decide against the president, as they should and must.
4
Hopefully if the Supreme Court must decide on the emergency status of Trump's wall, Justices' Thomas and Cavanaugh will be out on Jury Duty.
A careful reading of Justice Kennedy's concurrence in Trump v. Hawaii suggests that the Justice, at the time of his retirement, was considering jettisoning the political question doctrine. If that is what Justice Kennedy meant to say, I would tend to agree that it is a luxury we can no longer afford.
I am glad to see the 'military purpose and use arguments Finally entering the debate on this subject. They cinch the deal for me - and do not require any wholesale rejection of Executive powers to do so.
There is also much (MUCH!) more to fear from a deferential result - especially, and chillingly when the Prez declares a bogus emergency, and in the next tweets muses about how somebody ought to rein-in free press criticism of his majestic self. Those emergency powers Can extend to marshal law and and media control.
Can't happen here? Neither could his election.
7
To make lemonade from a lemon (Trump), this "crisis" could be the trigger for a re-balancing of the Constitutional principles of separation of powers. Since 1900, the presidency has either taken or been given more and more discretion to control the actions of government, mostly in the name of expedience. Congress has no right to give the president the authority to divert funds previously allocated for other purposes, nor to impose a tariff, for that matter. The Constitution is a contract and the right to alter it is reserved exclusively to the people through the amendment process. The National Emergencies Act is unconstitutional because it alters the contract with regard to Congressional responsibility. It's time Congress was forced to do its duty, whether it wants to or not.
11
Mr. Chesney concludes, “And if in the end the courts instead defer, let’s hope they have some way to reassure us all that this does not open the door to further abuses.” Trump’s attempt to twist the definition of a national emergency to fit his desire to have a wall on our southern border is, certainly, an abuse. On the other hand, many question whether declaration of a national emergency regarding climate change or the need for effective gun control would also qualify as abuse. I think not. Those, in fact, are instances where the term “national emergency” is merited...and in which the tradition of deference would be appropriate.
7
Why wait for the courts? Conclude an emergency session of Congress to rebuke this abuse of power.
It’s within everyone’s power to stop this right now.
7
Dangerous for courts to rule on this matter? I do not think so. If they cannot rule in this matter, then what can they ever rule upon?
This is really a simple case for a court to decide. The power of a president to declare an emergency is not unlimited. That certainly suggests that facts matter. If you do not like that, you can look to Congress' inherent power to control spending. Trump's emergency appeared hours after Congress told him he could only get so much money. If the Constitution means anything, what does it mean?
The real fear here is that the Supreme Court has become a collection of partisan hacks, especially from the right. I would never underestimate their ability to engage is confused and magical thinking to give Trump dictatorial powers.
18
@Mark Young; Courts apply laws to facts. The facts in this case are established in this case by Congress, which either does or does not judge the president insubordinate.
Note that it is easier to impeach and remove a president than it is to over-ride a presidential veto. The later requires a two thirds vote of both House and Senate. The former can be initiated by majority vote only in the House. "Originalists" can ponder why the founders made it so.
5
So "strange" to contemplate that a Supreme Court with so many devotees to the Founders' original intent should be tempted into making a move so at odds with that intent. The Founders were deeply suspicious of king-like exercises of power and believed Congress should play the dominant role in a democracy.
15
@Joyce
That was then, this is now. The founders knew that we would founder.
2
Excellent article
The outcome was decided by the creation of the Supreme Robert’s Republican Court. That encourages republican presidents to basically take whatever powers they want, while being confident Democratic presidents will be denied. the same consideration.
4
This is a complete no-brainer for the courts. Impeachment by the House and conviction by the Senate are the remedies the Constitution provides to Congress to discipline a president.
2
@Steve Bolger Agreed. And since, two years on, no one has yet been able to find any high crimes or misdemeanors to pin on the President, I suppose that the Congress has no real recourse here. Oh, right, that's why Congress is suing in the courts. (Duh!)
2
A good article and one that telegraphs the unlikelihood that the President will be prevented from exercising the current emergency authorities. After all, how could the courts thoughtfully set a precedent suggesting that a long legal or legislative process would be required in in the case of any real, immediate emergency? An attack on the US.? A mass infection? The eruption of the Yellowstone caldera?
So how might the SC prevent any subsequent President from inappropriately calling any event that he/she found personally concerning an emergency ? It's an imperfect rule but, I think that the Court could limit the ruling to areas where the President already has relatively unfettered power vested by the Constitution. Fortunately for President Trump, those areas pretty clearly include National Security and the unfettered immigration (Article 4).
2
If Congress members put country first instead of immediate self-serving gratification they would not have ceded so many of their powers to the executive branch for personal advancement and political gain.
However, even now they could take care of this and not risk the country's future. If they honor and take their responsibilities seriously they do not even have to stir their brains, just seeing past their noses is enough, it was all clearly laid out for them, step-by-step, centuries ago.
To ensure that no single person or entity had a monopoly on power, the Founding Fathers designed and instituted a system of checks and balances:
- The president's power is checked by the Congress
- Congress passes laws
- The president has the power to veto these laws
- BUT Congress, in turn, can override a veto
- The Supreme Court can rule on the constitutionality of a law,
- BUT Congress, with approval from two-thirds of the states, can amend the Constitution.
2
Down down we go into the quagmire. Very interesting op ed Mr. Chesney. What will the fates ie: courts decide and how fraught will the road be that we must travel?
1
The article makes the point that legislation must be fully thought out and precisely worded. Unfortunately our Congress seems incapable of doing this.
5
The greatest danger to our democracy and citizens is despotism and Trump threatens this in almost his every action. Our founding fathers knew this and set up our constitution in an effort to guard against it. It is an imperfect document to be sure, but almost 260 years it has protected us against dictatorship.
But now with the irresponsibility of both the Congress and the presidency that protection is eroded and that leave the final branch, the judiciary, to clean up the mess triggered by Trump's reckless 'emergency proclamation. In this case, it would be far better for the courts to side with Congress rather than risk the dictatorship to which Trump's actions would lead even risking the constraints on the executive action that could result from this train wreck.
9
@just Robert
It is not the irresponsibility of the "Congress" that is a problem. It is solely the irresponsibility of the Republican Senate.
16
There is absolutely NO WAY that the courts would risk being the target of an angry tweet by ruling against Donald Trump. Besides, the courts are generally under Republican control and growing more so by the day. In all likelihood, the Kremlin has found a way to deliver funds to Republican federal judges, either through speaking fees, private foundations or benefits to spouses and family. If Vladimir Putin can manipulate our system so effectively that he can take over the executive branch and the entire command-and-control structure of the United States, the judicial branch should be a piece of cake. A shrewd chsss master like Putin would protect his investment in the White House with judicial insurance. The fix is in. There's no point getting agitated about it.
9
I have no doubt about the outcome if DT has a choice between losing on any of his promises to his voters and a civil war. The moment of truth will be the next elections and the possibility that he loses with a small margin.
4
Does anyone have some idea how SCOTUS might interpret contradictory votes in Congress? On the one hand, Congress did not give Trump his wall funding TWICE. Trump signed on to one of them. On the other hand, if Senate Republicans won’t override Trump’s emergency declaration, isn’t Congress de facto declaring that shifting money from other sources to pay for the “wall emergency” is permissible? Am I missing anything here?
2
@Jeff
I anticipate that they'll use some of the weasel words they used to justify the "Muslim Ban." It's wrong on its face, it violates the constitution, there's no evidence to support it, but blibbidy, blobbedy bloo."
There is a check and balance in the law - Congress can reject the emergency declaration with a joint resolution. Yes, it will require 2/3 in each house, since the president will veto their rejection, but there is still hope (albeit slim).
4
@Joe
The only glimmer of hope lies in the fact that Democrats are now in the House-- because it would have been a real fait accompli if Republicans were in control of all three branches of government.
Still, with Republicans having to defend 22 seats in the Senate in 2020 (including MITCH MC CONNELL!!!), reaching 2/3 looks rather slim indeed.
1
The justices could do what is right, and choose to support the Constitution, while writing opinions that their decision is narrow, applying only to crooked, reckless and irrational presidents who are using their emergency powers simply as publicity stunts.
5
1) The issue of judicial deference leading to unacceptable presidential power grabs is easily met by declaring the Emergency Powers Act too vague to be enforceable and thus unconstitutional. After all it is the ambiguity of the Act's definition of a national emergency that produces a hole in the wall of checks and balances big enough to drive a fire truck through.
2) The problem would then be back in the hands of Congress where it began and should ultimately be resolved by a more precise definition of what constitutes a "national emergency" warranting extraordinary presidential authorities.
3) Furthermore, a new Emergency Powers Act would require explicit Congressional approval of any declaration by simple majority every 6 months or else the specific national emergency declaration would automatically be null and void with no further Presidential renewal possible.
4)Under a new Act "emergency powers" would be more specifically limited to those actions which in and of themselves would not violate the Bill of Rights without approval of 2/3rds vote by both houses of Congress.
4
When Trump loses in 2020 will he declare a national emergency and void the election based on voter fraud. McConnell would support that move to get a 3rd justice and evangelicals would to get abortion and gay rights banned by executive order. The GOP created this monster who will not leave the stage quietly and civil chaos is his favorite climate a civil war is fine with him perhaps he will demand a payout for him and his family to leave .
4
Honestly this is what happens when you put an unqualified unbalanced individual in the Oval Office. None of the laws and rules are written/legislated with such an individual in mind. All of the laws/rules/mores regarding presidential conduct assume that a reasonable individual that is fairly well balanced psychologically will be holding the Oval Office. Sadly this is currently not the case. America is getting what it deserves by electing this person. We all knew who he was. He hid nothing of his personality during the campaign and his criminality was very thinly veiled. Any person who has an attorney as a “loyal fixer” should never be allowed near the Oval Office. The term “fixer” is a mob term. Not a piece of terminology that should embraced by our country’s highest office!
12
The corps of engineers is military and can buy and maintain property. The left thought they won a battle over DACA, a presidential program, not authorized by congress, and supported by the courts. hmmm...you made this bed...
2
@Beetle Please, this kind of play has been going on since the Constitution was written. The blame game is short-sighted, and ultimately destructive and self-destructive both for people and country. It avoids and evades responsibility and honesty and thus a means to improve for the positive.
1
@Beetle ...and Mexico will pay for it, as was promised, right?
It is just like the 2nd Amendment to the US Constitution: the authors of the National Emergencies Act of 1976 did not really think this well through. Hence the current problem.
We need to have a revised or new National Emergencies Act that is precise.
4
Right now, Chief Justice Roberts is praying for a narrow decision against the emergency that the Supreme Court can simply refuse to hear the appeal for. That might be all he wants to for the next two years: a Supreme Court that lays low and is hopefully forgotten.
Don't forget.
2
If this eventually makes it all the way to SCOTUS, and they say it’s a NO to trump, I’m curious to see what he’ll do, if he’s even still in office.
1
You can have all the rules, laws, and traditions that you want, but ultimately the government really runs on trust. The authors of the National Emergencies Act clearly trusted that the President would have good judgment and be able to put the national interest in front of personal self interest. Our current President has demonstrated that has neither of those qualities on a daily basis for over two years! At this point we seem to have an executive branch that can barely function, and I find that absolutely terrifying. How many people died in the wake of Hurricane Maria? How many more are going to die the next time there is a real emergency? When I say that Trump is dangerously unqualified for the office he holds, that is not hyperbole. Our lives could very well depend on the decisions he makes. And does anyone (even Trump's supporters) really, truly trust that he is going to make the right decisions in a real emergency?
18
What would be the worse precedent, Trump losing or winning in the courts? Not a hard choice. If the courts let him get away with his claim to monarchical prerogative (think of King Charles I and Ship Money), much worse will follow with no institutional checks to call on for redress or protection. If the courts declare the statute regulating presidential emergency powers unconstitutional--which I think it is--we will still have the US Constitution and can remedy the problem under its aegis, not by grandiose fiat..
3
This piece raises valid concerns, but why does the author only blame the president? The grandstanding attorneys general of (I think now) 18 states, including NY and NJ who are thousands of miles from the border, are the ones bringing these cases to Court, not the president. They seem equally unconcerned with the potentially dangerous precedent that may be set.
My own prediction is these cases (or at least most) will be punted on standing grounds for what its worth.
3
@Robert Those states miles away from the border stand to lose money, which was legally allocated to the military that IS within their state borders.
4
As one would expect of an autocrat, POTUS is hoping that his "investment" in conservative court picks will pay off in a "win" that essentially subverts Congress's primary power of the purse.
Anyone with half a pulse could see that eventually SOMETHING from this administration would end up with a supreme court decision, and I'm almost surprised it took this long.
Now we will see if the court conservatives truly being in Constitutional Originalism or if they will tip our democracy with an activist ruling that allows POTUS to spend monies as he wishes without any input from Congress.
As usual in critical tests of a democracy, on the surface of every day life things seems "normal." (Or do they?) Meanwhile, the court case winds like a snake up to the highest court in the land. Do they believe in democracy? We will see. What they decide will have permanent repercussions.
5
The fundamental problem isn’t the Trump mess that the courts will have to face - it’s the National Emergencies Act itself. How could Congress pass a law giving the President emergency powers without defining or setting the parameters of what constitutes an “emergency”? Speaking of which, I wouldn’t put it past Republicans to wait and see if the courts uphold Trump’s disingenuous border emergency declaration and if they do, move to amend the law to define “emergency” in a way that precludes a Democratic President from emulating Trump.
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@Jay Orchard I agree that Republicans would act in any way to stymie a Democratic president, but in this case I would support that. If the worst we get out of this mess is some money spent on some portion of a wall (it's extremely unlikely that a lot of progress will be made), we will be lucky. And if the government starts taking land away from Texans along the border, we may even see Texas turn immediately and permanently blue.
8
@Jay Orchard
How could Congress pass a law giving the President emergency powers without defining or setting the parameters of what constitutes an “emergency?”.
In hindsight, it was an obvious mistake but then, way back when they adopted it, who could have foreseen the likes of Trump ever being elected President. By definition, an emergency is something we are not prepared for, so it would be hard to define it further. And even if they had tried, no one could have predicted this situation we are in. Ever.
7
@Jay Orchard The whole point of the act is to allow the President to react quickly to the unanticipated. Defining it in advance is impossible. However, Congress showed little imagination in designing the law. They could have given the President the power to declare an emergency on a fast track basis, pending immediate majority votes in both houses. And any such emergency should have a sunset clause limiting it to a few months so Congress has time to pass legislation through the usual process.
8
This is but another sanctimonious, and now predictable opinion hit piece against all things Trump. The presidential emergency declaration has been used fairly often historically, and for many things far away from the urgency of controlling our border. Of course it is within his power to do so, and this is an initial divisive salvo for the Times liberal audience to declare an ultimate Supreme Court affirmation of its legality illegitimate. So far, President Trump’s prediction of Democrats’ howling is right on schedule. Cue Schumer’s tears...
2
Once he opened his mouth and started his announcement with “I didn’t need to do this...” he stated a fact that it’s NOT an emergency. So don’t get your hopes up that his temper tantrum will be appeased by any court.
3
@HENRY
It’s not clear what you mean by, “many things far away from the urgency of controlling our border.” But historically, presidential emergencies have been declared virtually always when there are ACTUAL EMERGENCIES. Trump’s “emergency” is no such thing, as many Republicans recognize.
2
Through Republican theft of one SC appointment and the timely retirement of Justice Kennedy, Trump has already added two SC justices who favor executive power. The situation is...can you call something darkly laughable? A comically self-important real estate huckster gets a television role playing a successful businessman. He parlays that fiction into a successful run for president, whereupon he blazes a two year trail of incompetence, while constantly chafing at constitutional restrictions on the absolute power he craves. After packing the SC with friendly justices, he invokes a transparently bogus national emergency to force a legal decision that may vastly increase presidential power.
This is all actually happening right before our eyes in real time. Is the absurdity of the situation somehow invisible to Americans? A foolish, ignorant narcissist is threatening to assume all but absolute power over the United States of America, and everyone is going along with it like it's the most normal thing in the world. The nuclear codes to the most fearsome arsenal in history are at the stubby fingertips of a man who has never learned to use a computer, will not read briefing papers and simply walks out of important meetings out of boredom.
In 20 years, when as yet unborn children are studying high school history, how will adults justify the farce that is playing out right now in America?
6
Sadly, the last word on this fake emergency may likely be, ‘The Supreme Court, once again, voted along political lines.’
1
@Mark R.
Remove this imposter of a president from office and send him back to Russia. Spending all this money and time dealing with fake emergencies by this con man
We're overlooking the one person who can single-handedly bring into being a functional wall that doesn't cost U.S. taxpayers anything -- El Chapo.
Trump needs to cut a deal with El Chapo in which El Chapo doesn't just pay for the entire cost of building the wall, but also designs it.
5
At a time when two out of three branches of Federal Government become so compromised by a party run amok (guess which one) the neutral integrity of our courts is more important than ever.
Republicans have actively been stacking all possible courts with prejudiced Judges and politically active appointees - a situation never having been seen to this event in our history. It is a major step toward a one-party country, also known as a Fascist autocracy. Yes, that is where we are heading if our courts cannot maintain political neutrality. Kavanaugh, although as yet untested in any major case, is a pivotal point and must be watched.
Trump is following an unquestionable path toward autocracy, and his obvious collusion (yes "that" word) with Putin should be seen as a clear threat to American Democracy. This will eventually be tried by our courts as the ultimate crime against the State. It is essential for this and all future generations that we maintain Judicial Independence and neutrality or we are lost, Comrades.
5
A majority of the American people understand by now that Donald Trump’s erratic, destructive, and dishonest approach to leadership makes him unfit for the office of the Presidency.
What many don’t know however, although some are beginning to see it is that Senators like Mitch McConnell and Lindsey Graham have handed Donald Trump the freedom to enact out this destructive behavior. When this cold Civil War has finally ended , those Senators should be held just as accountable as Donald Trump . They are just as responsible for the mess that we are in now .
Mitch McConnell in particular, has had the power to do what the legislative branch of government is supposed to do when a president goes too far .
He has done anything but that, and for this reason he, in particular is just as dangerous to the well being of our country as Donald Trump is .
I cannot believe that the people of Kentucky will be so ignorant as to reelect a man who has inadvertently contributed to so much damage.
5
Quite the predicament, heh Times? One one hand, the Supreme Court may give the President the latitude he is, by law, allowed. So that means Trump gets the wall, and the spigot of illegal immigration into Dem leaning states is turned off, which is currently affording them more House reps and electoral votes come census time. .
On the other hand, if the Supreme Court rules with a heavy hand, and prevents Trump from doing this, that will set precedent, so if a Democrat President in the future attempts the same thing, itll be struck down by the Supreme Court.
Wouldve been great if Hillary won, and we had an open borders President. We wouldn't have to worry about any of this, right Times?
1
Democrats are not and have never been in favor of open borders. This is a complete red herring.
I have no doubt the Court can rule against Trump and not do great damage to any accepted principles of presidential authority jurisprudence. In Gore v Bush, the Court did not even leave fingerprints. And that was a completely anti-jurisprudential ruling. Stopping Trump is more important than any of your horrible imaginings.
4
We knew that previous “emergency” actions taken by Democratic presidents were not constitutional. Why did the courts support those?
1
True, our society is obsessed with visual materials, and this is born out in this article's opening photograph. The photograph might be viewed as aesthetic, but its lack of pertinent information makes it irrelevant at best, or at worst, a barrier to accessing the written content.
Kavanaugh stacks the Supreme Court. It is a shame and rather stomach-turning to think another branch of government has been ruined by Trump's Opposite-of-Midas Touch. As SNL put it so well, is it payback time? Does the Kava-bro owe Trump? Will Roberts tire of balancing the Court instead of voting his conservative self? What an ungodly mess.
3
When will we discover that Trump happen to purchase a Cement plant?
I think the Professor overstates the danger of an "anti deference" decision. If the courts grant deference in such an obvious pretextual situation, even quoting Trump's own words that "I didn't need to do this", the concept of judicial review would effectively be abandoned. Such a ruling would open the door for any president to act recklessly unless specifically restricted by Congress. When a true emergency exists a future president can be assured that he will have the latitude to act in the country's best interests, even if Trump's power grab is struck down.
1
Seems like a lot of pearl clutching going on here. Or perhaps we have been given a false choice by the professor: the deference principle will be gutted or extended too far. Maybe if a court just calls this what it is, a completely unprecedented end run around a Congressional non-appropriation, it is an easy facts, easy law decision with no damage to the institutions of government.
6
By next week the House will have set in motion the declaration of rejection mechanism, so any courts involved by then can issue a temporary injunction to allow time for that to play out.
This would put the onus on the Senate to short circuit all the "emergency" nonsense. Will Senate Republicans vote against the "emergency" and start to rehabilitate themselves with the general electorate or vote for the "emergency" and all but ensure they become the minority in 2021?
5
The answer, in normal times would be to revoke the law, in its entirety or to modify the law, allowing the use of the emergency clause for only a limited time, giving the legislative branch time to act on the emergency.
These are, unfortunately, not normal times, with the majority of one house so slavishly obsequious to the executive branch that the only recourse would be through the courts.
5
Is the bastion of democracy becoming an autocracy? Seems the storied checks and balances are in full retreat allowing madness to sweep across the land.
9
The nuances of your political system are not that interesting to a foreigner, but the reality that this man was elected and is now proposing to use the military to fulfill a campaign promise is terrifying.
18
President Trump does not care if his emergency solution wins or loses in the courts. He has taken this path so as to satisfy his base (and Fox News) that he did not give in to avoid another politically disastrous shutdown yet still maintained the possibility of building the wall. He expects his base to give him an A for effort.
With respect to jeopardizing the courts in having to make a decision as to presidential determination of what constitutes an emergency, Bush v Gore gave them the perfect out. The decision should be read narrowly only to apply to this case.
That is, it is not to serve as a precedent.
Win, win.
3
“We knew the president was launching down a risky and unpredictable path. It turns out he is taking the courts with him."
Not that he cares.
7
The legal problem described here could be avoided if Congress voted to annul the emergency declaration; Trump would probably veto the annulment and then Congress would need to override with two-thirds of the House and Senate voting to do so. Is it too much to expect that two-thirds of Congress would vote to defy the emergency declaration, and defend the separation of powers and their responsibility to oversee government expenditures? Probably, given how many Republicans would probably put partisanship over the Constitution.
The use of an emergency declaration when clearly there is no emergency is a frightening precedent. Maybe paranoia has gotten the better of me, but why couldn’t a president declare that unfavorable election results were fraudulent, constituted a national emergency, and then use the military to defend the president holding onto the office of the presidency? And why wouldn’t the political party on the losing end of the election support such an action in order to hold onto power, choosing power over the Constitution and democratic government? Not possible? It seems very possible to me, and it seems very clear which party would act in this manner.
6
@PRJ Given the 'slippage' of many democratic norms your scenario is less far fetched than it used to be. We are in a perilous presidency.
2
It is bewildering that Americans consider Russian meddling in U.S. elections as a crisis, but discount the far greater influence illegal immigration exerts on U.S elections. Illegal immigrants cannot vote—or, least, are not supposed to vote—but nevertheless they impact U.S. elections. The reasons is that they are counted as residents by the U.S. census. Census results are used to determine the number of congressional representatives each states gets as well as how many electoral votes each state gets.
The most commonly accepted estimate is that about 11.5 million illegal immigrants reside in the United States. But a new Yale University study shows more than 22 million illegal immigrants may reside in United States.
If the commonly accepted estimate is accurate, illegal immigrants generate more House seats and electoral votes than all but seven states. If the Yale study is accurate, illegal immigrant generate more House seats and electoral votes than all states except California and Texas.
This is why Democrats oppose restoring the citizenship question to census form. Adding the question would reveal that illegal immigration rob states of fair representation in the House and Electoral college.
2
The Supreme Court stopped President Truman from taking over steel plants during the Korean War, despite his assertion that preventing steel strikes was essential to our war effort. Justice Robert Jackson authored the most important concurrence in that case.
Justice Jackson also authored the majority opinion in West Virginia Board of Education v Barnette, where the Court held that government officials were powerless to force schoolchildren to participate in patriotic exercises; in that case, a flag salute. While acknowledging that the encroachment at issue might be relatively minor, he warned that we must guard against first steps on the road to authoritarianism—that we avoid evil ends by avoiding evil beginnings.
President Trump has an unusual affection for despots and an extraordinary disregard for the checks and balances of our democracy. I pray that the Supreme Court can muster enough of the Justice Jackson’s wisdom to once again guard against evil beginnings, and to stop Trump from taking another step down the road to the imperial power he so clearly craves.
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@Rich Casagrande The problem is, some of the justices on the Supreme Court are there because of evil beginnings.
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@Rich Casagrande The courts also allowed the DACA program to continue...never authorized by congress.
Same issue at heart.
4
@Beetle: DACA has nothing to do with emergency declarations.
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"The deference tradition exists for good reason. The executive branch as a whole possesses access to information, expertise and experience that are critical for sound policymaking, and to at least some extent our legal system allocates responsibility for military and national security judgments to it."
It's widely documented that the President does not use his unique access to information, and the expertise and experience available to him. That alone supports this as an outlier situation, not to mention that he's already said the national emergency isn't necessary.
6
This is great, if not exciting news. The wall is never going to be built; government moves so slowly that by the time anything material begins to happen with wall construction, a new President will be taking office and they’ll simply issue an Executive Order to cancel it.
The truly good news in all of this is that gun violence is the scourage of this nation, as is the out-of-control rise in health care costs. Both present national emergencies, but congressional action proves impotent. With the sitting of a new President in January of 2021, he or she will now have the legal precedent to declare a national emergency in both situations and finally we can leverage the Office of the President to achieve tangible results on the two most glaring national emergencies in this country.
How ironic that a dictatorial President and his complicit GOP Congress would so overreach that the pendulum eventually swings back to justice.
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@Rick
So the day will be saved by judicial inefficiency and backlog? Yay?
@Rick I wish I shared your optimism. I'm not as confident that POTUS won't be reelected even though he he is essentially hoping to rule as a dictator.
Given the degree to which power has accrued to the Executive branch over the decades to the detriment of the Legislative, there doesn’t seem to be much danger of “overreach” in the direction of giving a President too little authority in cases of “national emergency.”
The Constitution gave Congress control over spending (and taxes). It’s past time to insist that Presidents (not just the current occupant of 1600 Pennsylvania Avenue) not be given more control over these two critical areas.
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"If in the end there is an anti-deference ruling, let’s hope that it is specific to the unusual facts of this case, with pains taken to protect the general rule. And if in the end the courts instead defer, let’s hope they have some way to reassure us all that this does not open the door to further abuses."
As with so many norms this president has busted, creating cases for court intervention on the the legality of the Emergency Powers Act is testing the limits of our democracy.
Robert Chesney is right to point out that this president, like the proverbial camel, has his nose in the tent of our constitution. If he wins on deference, he will abuse power further.
Donald Trump may not even be legitimate, for numerous reasons we all continue to follow. Yet, with his end run around Congress, he's using emergency statues for political ends
How can the courts come to the "right" decision on emergency powers when this president is so willing to defy constitutional norms? Every day, an increasing authoritarianism is on display by a man willing to exploit vague legalese to get his way.
Deference should be reserved for presidents who have earned it. Donald Trump, who makes everything political, is using emergency powers to promote his reelection, not resolve a true emergency.
8
I guarantee that the first section of any new wall will be ablaze with a TRUMP logo some kind.
1
Is this principle of deference that Cheney is so worried about such a great thing? Japanese internment camps, anyone? What’s next? Muslims? Democratic Socialists?comedians? Journalists?
3
“Declaration of National Emergency by Reason of Certain Terrorist Attacks (Sept. 14, 2001), issued in response to the 9/11 attacks, this executive order gave Bush sweeping powers to mobilize armed forces.”
Is this one of your babies?
Tell me something. What are we waiting for? Donald Trump to strip naked and run down Pennsylvania Avenue nude screaming incoherently? I can't be the only one out here who knows this man is off his rocker.
9
@Wally Wolf
No, you are absolutely correct. The "powers that be" would only have to force him to submit for psychiatric screening - he is somewhere in the serious personality disordered universe - perhaps neurotic a well. But no one has the spine to "make the call." I've studied this stuff for 30+ years with social science degree (human growth and development) but it is the professional clinical community who treats this kind of illness. Thing is, it is not against the law to be mentally ill! A nation of laws. Cartesian logic trumps all else. Strange times, these. In any case, you are not alone in your observation.
3
This has nothing to do with eminent domain or whether or not an emergency exists, it's about our system of government where the Congress has the power to decide who gets the tax payers dollar, and for what. If a President can decide what is an emergency and can circumvent the power of Congress and the People to spend money as he pleases, then we no longer have a democracy.
14
Why not argue the case on its merits?
– Illegal immigration is at a 14 year low.
– The vast majority of illegal drugs come into the U.S. through established ports of entry – mostly in motor vehicles, but also by boat and plane.
– Immigrants are less likely to go afoul of the law than U.S.-born citizens, once illegal entry is discounted.
The real emergency is the refusal to assign adequate legal and humanitarian resources to handle the ongoing constant flow of would-be immigrants and asylees.
8
@cc Because the Texas landowners do not have Standing to argue those issues, whereas they do have Standing to argue about the Taking of their land.
7
"The executive branch as a whole possesses access to information, expertise and experience that are critical for sound policymaking ..."
Yes, but Donald Trump ignores information that he doesn't like. He has also ignored and belittled the few administration officials who possessed any expertise or experience, to the point that most of them have left. If this administration was ever capable of sound policymaking, it isn't anymore, especially not on an issue like immigration, which Trump has invested with way too much personal capital to see anything objectively. Courts at every level would be entirely justified in refusing to defer to him on pretty much anything.
4
I like hair splitting up to a point. This essay shows off this analytic skill without question. But the thing is -- the case for deference if there is such a thing is the fact that the is neither an emergent problem, a growing problem (border concerns), a here-to-fore unaddressed or unaddressed recently by Congress problem. It fails on all those grounds. And the President's own mass falsification of all salient factors and his own "I didn't need to do it" seem as disqualifying as possible. A narrow but definite rejection would set no precedent. And the next Congress can refine the law, which even with partisanship would not be out out of the question.
2
The problem is that Congress has delegated its lawful authority to the executive branch. Once it has been decided that one branch of government can cede its constitutional and exclusive authority to another branch you have opened a Pandora's box of trying to figure out just how much of that authority can be delegated. Personally, I think that if the courts were to decide that Congress cannot lawfully delegate the power of the purse to the president to ANY degree, it is problem solved. This would force congress and the executive to figure out a constitutionally valid way of getting Congress to quickly approve emergency funds at the president's request instead of granting him/her some ill-defined authority that would necessarily get us involved in trying to decide just how unconstitutionally far we wish to go in allowing the executive to exercise the power of Congress.
7
This just goes to show you that lawyers, even law professors, will as Snoopy said in a Peanuts cartoon years ago, will say anything to try to justify what they want. It is not Trump of course that is "taking the courts with him" down a "risky path" to a bad precedent but the people that are lining up to sue him. And besides if Trump wins, his victory will not be a precedent for future presidents unless any of them feel the need to somehow fortify the wall that Trump will win the right to build.
Surely the federal government and in particular the President has the duty and the responsibility to defend our borders against anybody that threatens to violate them and to use whatever means he judges to be necessary to do it. We are being invaded by people that have no right to come it. They are not armed, although some of them no doubt will arm themselves after they get in, but they are invaders nevertheless, intent on taking jobs and our wealth from our citizens and others that do have the right to be here and live here. And building a wall, as previous Presidents have recognized, is a reasonable means of trying to do it. Even if it is not a complete fix, it will help. And if the President decides that a wall is necessary, no citizen has standing to complain about it. No one but arguably the Texas property owners are harmed and he US surely has an implied easement to go on private property to do what it believes is necessary to defend the border.
2
Mr. Cheseny is too caught up his legalistic construction of judicial vs. executive branches, worried that the court will either defer too much to the executive or assume too much authority.
But he makes a basic error. There are THREE branches and the point is that the federal courts can say that the executive branch is overreaching (there are many sound reasons to declare that there is no national emergency whatsoever, so the current law cannot apply) and that the authority for appropriations needs to remain vested in CONGRESS.
That's especially doable as one part of Congress, the House, will surely override the president's declaration, while the Senate is likely, too, as well. When Congress itself has said there is no emergency and its members, along with the States, land owners, and major organizations are suing the administration to overturn it, the Court will be on solid ground in doing so.
Mr. Chesney also argues that Judiciary wants to and should defer because the executive has expertise and information that it lacks.
“The deference tradition exists for good reason. The executive branch as a whole possesses access to information, expertise and experience.”
True enough, but that point applies to the Congress, too! And, that's critical. In fact, a conservative Supreme Court, especially with “originalists” on it, should declare the National Emergency Act unconstitutional for its vagueness and improper delegation of Congressional authority to the executive!
3
I have no doubt that the Supreme Court, four of the justices anyway, will support Trump in this "national emergency" case and then anything else he wants.
I also have no doubt that the Supreme Court, four of the justices anyway, would rule against any national emergency that a Democratic president would declare.
Justice Roberts is becoming more and more important daily. He may be one of the very few Republicans who will be looked upon favorably by historians when they assess this period and the coming dark days of the US.
9
Stacking the Supreme Court with ten liberal judges will be the antidote if SCOTUS neglects their responsibility to uphold the constitutional powers of congress. This action would be MORE constitutional than Trump's act of doing an end run around Congress. My guess is that Justice Roberts understands this.
6
"Supporters of President Trump would be most unhappy to find a President Beto O’Rourke or Kamala Harris reaping the benefits of it in the coming years."
Oh please. Let's not pretend that the left is holding back solely because some elusive precedent has not yet been set. Curbing rights, especially those in the first 10 amendments, is something the left will do regardless of what President Trump does. This isnt a secret or conspiracy theory.
I hope conservatives in general, and Mr trump and the Republicans in particular, would grow a spin and do away with the niceties and formalities of governing. This isnt a gentleman's man. Each side wants more than just victory or a political mandate, they want the other side destroyed. There is no longer compromise. I dont want to be on losing end.
The expansion of the Executive branch's power constitutes an ongoing process that continued throughout the cold war and post-cold war periods. Using the rationale of emergencies, Presidents have launched division-sized invasions (such as Lyndon Baines Johnson invasion of the Dominican Republic) and repeatedly transferred funds to projects they deemed very urgent.
So if the courts indeed do limit their power to do so, the Democrats will be pleased until they again win the Oval Office and the Republicans will be displeased until they are forced to leave the Oval Office. Irony truly is...ironic.
Well if you have to use eminent domain to take the land from Americans you are already treading on questionable ground. So the owners are already mad and now he declares a fake national emergency. He is doing the bidding of Fox News and Sean Hannity. Unbelievable!!!!
5
Trump does not care about building this wall. All he wants is to show his supporters that he made everything he could to build the wall and DEMs did not let him.
3
“They say bad facts make bad law”.....what kind of law does no facts make?
4
Why isn’t the NRA fighting the emergency declaration with everything they have. They have the most to lose, since it’s a virtual certainty, that should Trump win on this, the next democratic president will declare an emergency over gun violence within weeks if not days of the inauguration.
Without doubt, the popular AR and AK type guns, along with cartridges holding more than 10 bullets will be banned.
Gun lovers, where act now, or don’t complain later.
I can see the author's point, but given recent experience with Trump's actions on tariffs, immigration, etc., along with his utter contempt for information and expertise that doesn't come from Fox pundits, I hope that the courts swat down his "emergency". The one good thing that Trump has accomplished is to reveal the extent to which congress has yielded power to the executive branch, and Trump is Exhibit A for why this is a bad idea. Wars should only be entered into after a congressional declaration and the national debate that such a declaration implies, and trade rules should be subject to congressional approval, to pick but two examples. Otherwise, we are counting on the wisdom and good character of the president, which we should now know is not guaranteed.
190
@Andrew Gillis. It isn’t “Congress” that has yielded power — it is the Republicans IN Congress who have acquiesced to Trump’s mini-despotism. Ironically, in his first two years he couldn’t even get them to cough up money for this wall. So, the nation should conclude that no one really, really wants to spend money on it.
But win or lose Trump will use this as an election issue and no one needs a crystal ball to see that this is the way he works. The guy moves like a quarterback through the opposition. He weaves, he ducks, he jumps over. If he could become invisible until he gets that ball into the end zone, he would.
11
@Andrew Gillis
Another good thing he has accomplished is to make very clear the weaknesses of a Constitution that assumes the members of the government have the country's interests at heart.
20
@B. Rothman
Actually the first "fast track" trade negotiations began under Franklin Roosevelt. And despite all of the wars we have been involved in since 1945, there hasn't been a formal declaration of one since then. I agree with you that the Republicans in Congress have been particularly docile with Trump, but this isn't entirely new.
5
It seems that, in general, people and businesses are too eager to use the courts to defeat policies that they dislike. In a democratic form of government presiding over a population of more than 300 million individuals, you don't always get what you want. Trump's emergency declaration might be an exception if, as the author argues, judicial opinions are written narrowly. The better long term remedy is to ensure that we choose presidents who are capable of handling the job, and who will act in good faith and based on real facts. Maybe all political party nominees should be required to undergo a psychological test to ensure that they are able to handle the duties of the office.
4
This could be the best thing that has happened for progressives in the last 80 years. If Trump wins this case, the most radical progressive ideas will become law. And these laws, like Obamacare, will become popular and hard to remove. These will include ideas to curb climate change and to bring single-payer health care.
3
Have the courts learned from Koramatsu? They deferred to military assessments, and used that to ignore our own constitutional standards. Later they learned that the military lied, their internal reports indicated the Japanese-American community posed no strategic threat.
5
"The executive branch as a whole possesses access to information, expertise and experience that are critical for sound policymaking..."
Would that the executive actually make use of this information. Kaptain Kaos chooses to ignore or refute the information brought to him by the very agencies that deal in that exact information. Everything from the amount of drugs coming in (at border checkpoints rather than in open areas) to the "caravans of terrorists" to the bound and gagged women. None of those things are true according to the Border Patrol and Immigration services. To declare an "emergency" based on lies and have the courts uphold it would severely undermine the rule of law that the U.S. has worked on for nearly 250 years.
7
The Democrats took this to court. They have only themselves to blame if the courts rule against them.
2
@Greg
Hard to pack more inaccurate claims into such a short comment.
First, it is not "the Dems" who are taking this to court. It is a bunch of states and private entities.
Second, the Democratic controlled House will almost certainly vote - as the Emergency Proclamation allows - to overturn the President's declaration. The Republican controlled Senate - despite the disapproval of a number of Republican senators - will likely vote against that disapproval. If not, Trump will veto it. And the Repubs will block the 2/3 majority needed to override the veto.
That leaves it up to the courts to deal with the law suits that are filed. They have no choice but to do so. And it is the Repubs - both in the Congress and in the White House - who are to blame for this mess.
7
@Solon
None of that will happen. Trump will be re-elected. The Supreme Court will rule in his favor. The Senate Republicans will back the President. And the wall will be built. End of story.
1
@Greg
Not happening, Greg. Setting all name calling by party aside, if I were a good ol' American capitalist betting man, I'd seek you out and take your money.
1
The Times is still operating as if we are living in a fair, honest and functional democracy as configured by the Constitution. Starting when Mitch McConnell denying President Obama the right to have a vote on his Supreme Court nominee, the constitution went out the window. I find McConnell a true menace and someone who long ago put his power to control things first and foremost.
That we have a man who was elected even though the popular vote was against him, that the Russians were proven to help him win, that the states have severely gerrymandered their districts to the GOP's favor, that voters have been restricted from exercising their rights, that TPOTUS lies every single day, tells us that things have not been "as usual" for over two years. The SCOTUS will favor Trump, regardless. The GOP set that up. Thanks, Ms. Collins!
The "religious right" (i.e. the religious wrong) decided 5 decades ago to push their way into the government to control it. They have succeeded with the help of Kochs, Mercers, Sinclair, Murdoch, and Adelson. Thank the great brainwashed for this dilemma and do not count on the courts to rescue the country. They have been stacked in favor of "conservative" ideas and will bend upside down to be like Pence.
The wall is just a symbol of a country divided against itself, and we all know that it cannot stand. This Civil War which is really the Uncivil War is lead by McConnell/Trump. We need a new Lincoln. God help us all if we have them for another 4 years!
13
I completely understand the stupidity and flaws inherent in President Trump's emergency declaration. But the premise of this article is not very original: in an important ruling, there is always some chance that the precedent set may be too broad. Yes, I agree. And? This is precisely the role of the courts, to indeed "second-guess" proposed declarations (this is not a "statute," as congress rejects it). Using a verb with negative stigma, "second guess," doesn't change that basic role. The Supreme Court can, and likely will, make a narrow ruling on this. Judges may be political, but not as stupidly political as society often describes them. There's no way they cede such power to the Executive. The Wall is dead in the water with a rotting bow and stern. Thus, imo, this article is informative, true, and worthy of a read, but, at the end of the day, alarmist.
1
What is most troubling about this whole affair is that Trump certainly has no idea of the larger context of his actions and the potential damage to our democratic system. He only sees this though the distorted lens of his ego. He’s like a little boy who thinks fires are neat but has no concept of the fact that the whole forest could burn.
7
Courts decide hard cases all the time. This isn't one of them - it's plain to see that the emperor isn't wearing any clothes.
7
This is a huge debacle. Unfortunately, t-Rump is taking decision making away from the government and putting it into the hands of the courts. This is not the way this country was founded. The government makes decisions. Is t-Rump trying to make government useless? He wants to be the great dictator. Frightening.
3
So more tax dollars to pay salaries of lawyers and frivolously burden our courts, The amount of money wasted fighting this will surpass the wall by three times. This is not about money. It’s amount further destroying the Americans.
@Pilot
The issue is not fighting the wall. The issue is fighting the destruction of the separation of powers between the executive and legislature; in other words,fighting FOR the bedrock of our Constitution.
What Pilot is really saying here is that if it is frivolous to spend money and burden the courts to protect the Constitution and American democracy, then the hundreds of thousands of American men and women who for over 240 years have sacrificed their life's blood to protect the Constitution and American democracy must also be a frivolous waste. The American experiment in self-government has always required blood and treasure.
I'm sorry that in Denton, money is more important than the Constitution. We always thought people from Texas were patriots!
1
The Supreme Court need not head down the dangerous path of second-guessing the President as to whether our border national emergency is real or...uh...Trumped up. Here's the clearer constitutional question:
Does declaring a national emergency empower the President to apply Federal funds not previously appropriated by Congress for the purpose of addressing that emergency?
The National Emergencies Act ("NEA") authorizes the President to do just that; but not all laws withstand constitutional scrutiny: The NEA simply doesn't square with Art. I, Sec. 9:
“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
The Supreme Court can simply point that out, invalidating both the NEA and any use of funds predicated on the NEA's unconstitutional authority.
2
@Jim Cornell Following up, given the difference between authorizing legislation and appropriations, the question arises whether it is enough that Trump has authority to spend money in an emergency. Does he not also need funds appropriated by Congress? In other words, doesn't Congress need to have appropriated funds for a contingency, such as an emergency?
If resident Trump is a bull in a china shop, then are our laws, our very Constitution, a china shop?
Perhaps we needed Trump to bring these areas of weakness into specific relief, before say, a young lance-corporal seizes power on an even more nationalistic platform.
2
I hope the Courts stop to consider that Trump signed the budget presented by Congress and that he has therefore contradicted himself by then signing a law which opposes the Budget he signed!
Why is no one taking this into account???
It proves that Trump is INSANE.
2
In his first inaugural address, President Reagan said in relation to then current economic circumstances, “In this present crisis, government is not the solution to our problem; government is the problem.” Fast forward to the Trump era, and nothing truer could be said. Unless the courts, Congress, and we the people do our part to take on this bloviating bag of deceit, this country will lurch ever closer to a failed system of checks and balances.
1
The government isn't the problem, it's the guy who is acting as president that is!
1
Professor Chesney's over-arching point is that the courts should not presume to know what the President knows. In this matter there are no secrets and no CIA, NSA operatives will die if "this gets out", therefore there should be no deference to the President when he declares a non-emergency and emergency because he sees it that way.
1
We now have a court construed to be a conservative bludgeon.
This ruling may decide whether Roberts is Chief Justice or Chief Kangaroo.
3
"We knew the president was launching down a risky and unpredictable path. It turns out he is taking the courts with him."
It's more than that. Our treasonous president, in an attempt to distract from the Special Prosecutor's investigation, is literally taking the whole U.S. Government down with him. Unfortunately, the complicit Republicans are willing to let him.
Our democracy is dying right before our eyes.
4
Desperate times call for desperate measures. Trump is one of the very few people, in current Waghington, to be trusted with such decisions. As he is widely separated from the political machinations that have given us BK'd Warshington.
1
Rhis action is nothing less than a theft and illicit appropriation of funds and taking of property by the same "Party" that rails on about Federal overreach in designating federal lands National Parks and Monuments. Hypocrisy at the highest level, and ironic. It must be stopped at all costs.
3
If Congress does their job by tightly writing legislation that doesn't cede too much authority to the Executive Branch, we wouldn't be in this mess. There would be no Constitutional argument to make by the President.
Nancy Pelosi did the same thing with the passage of the ACA. She allowed language in that bill that wouldn't get a D in a Harvard Law School class...using the words 'shall and may' vs. "will" hundreds of time to cede congressional authority and power to the executive branch.
Likewise the 'I have a pen and a phone' approach President Obama used. Are liberals truly going to allow Obama to legally declare 750,000 illegal immigrants legal with the stroke of a pen...particularly after he had publicly stated a dozen times that he didn't have the constitutional authority to do this?
This is indeed an important case for the SCOTUS to rule on and I can already tell you how they're going to rule.
They're going to say that based on the law as written (by Congress) they have ceded authority of their own accord to the Executive...and the Executive is exercising his ability to use that authority to construct this wall with $ already appropriated in this general category of defense.
This majority opinion (written by Roberts) will also stress that it is not the courts job to protect the people and their Representatives in Congress from doing stupid things..like writing poor legislation that allows this to happen in the first place.
1
Is there any doubt that the GOP Courts are going to give the “unitary” president everything he is asking for?
3
There needs to be a way to stop such egregious acts based on "military necessity" or "a national emergency" as the Japanese American imprisonment in concentration camps. The courts should not have allowed that to happen. The same goes here. The courts cannot allow a transparently bogus national emergency declaration to stand.
3
Thank you for properly framing the inherent problem for our system of Government. Of course, Trump himself is the problem. We would not have this opportunity to have only a bad outcome in using the Supreme Court to decide things like this. But Trump thinks all of this is ONLY about him. His fascist tendency is the problem. Our Government is established as three equal branches to avoid such behavior. It only works when people "behave" as such. Trump needs to be impeached, before the damage is simply irreversible.
3
Just another distortion of American institutions by our current Commander in Chief. 2021 cannot come soon enough.
2
“The executive branch as a whole possesses access to information, expertise and experience that are critical for sound policy making...”
Yes, but NOT if the chief executive won’t believe such information, expertise or experience! NOT if the chief executive has delusional beliefs that defy objective information!
The problem here is that lawmakers, even the Founders, did not expect a chief executive who has no ability to set aside personal delusions, greed, or criminality. They didn’t expect someone without a conscience, without empathy, without a moral compass to end up in the Oval Office.
The Courts must decide these lawsuits on the merits. Not on some mystique of “tradition” - when faced with a despotic man with allegiance to a foreign adversary, whose secret meetings with this adversary, bent on destroying our democratic “tradition” is both clear and urgent.
I never expected that in my old age I would so often wonder where in the world I should flee to! How to do this in old age! Who would take me in!
When things get this bad, the courts should take notice! Please, Courts, step up and help us! We’ve paid our taxes. Voted. Obeyed the law!
Do something!
4
Which way is our military facing at the border?
1
of course the GOP Senate could have show the wisdom to block the national emergency and the over-ride Trump's veto. but then they are cowards with no interest in precedent or deference e but only their next election .
2
There is no emergency, therefore no basis for spanky's claim.
3
OK, can we please just stop with the continual "Beto O'Roarke" references? I see it everywhere, always paired, as here, with one of the women.
Get a grip, writers. He's just one of many candidates and you can only do this if you ALWAYS included, in previous columns, in previous election years, one woman candidate alongside one male candidate. You could just as easily have named two women...
3
This is a very small thing but something that I wish the editor had been mindful of: the author says “President Beto O’Rourk or Kamala Harris.” Harris is a sitting Senator who has declared she is running for President. O’Rourke has not been elected to the Senate and not yet declared a run. Why then does his name come before hers? It subtly implies that he outranks her despite objective evidence to the contrary.
There is no doubt that deciding this in the courts may make a bad situation worse. None of the prior situation where the act was used was a "national emergency". One would think that by now if Congress was concerned about its powers would repeal this act or at least amend it if its any real use. Congress has been ceding powers to the executive for many years. There are 31 uses of the law in action now. Very few of them are "emergencies". The obvious needs to be done, the law needs to be restricted and amended to cover blocking foreign transactions which is what the vast majority of the uses of this act. By such poor legislation, Congress is acting hard to turn the the U.S. republic into a Dictatorship. Trump is now a willing accomplice.
1
"Can judges second-guess a president’s determination that there is an “emergency” under the National Emergencies Act?"
They have second guessed Presidents, and the Congress on many issues. Why not this?
But if they refuse to 2nd guess Trump, then they better maintain the standard for all Presidents. Is this what the nation really wants?
1
During Trump's emergency declaration, he knowingly paused right before he said that legal challenges to his declaration would end up in the...Supreme Court. The same Supreme Court that he shifted rightward, after McConnell did his own end run around the Constitution by refusing to vote on Merrick Garland, and Justice Kennedy's surprise resignation left his seat open (Kennedy's son's relationship with Donald Trump cast a pall on his father's resignation announcement, because of his role at Deutsche Bank, the only bank outside of Russia that would lend to Donald Trump after his many bankruptcies and business failures.)
4
I think this could be the moment when the courts reverse the 200 year trend of increasing executive power - and decreasing Congressional power, abetted by Congress itself. As the author notes, there is ample evidence to reverse Trump's decision. Hopefully that will give future presidents pause when thinking about ruling by executive order. While Obama wasn't as blatant as Trump, he too tried to bypass Congress on a number of issues.
I'm less worried about constraints on the president's ability to declare an emergency. If it's a clear emergency Congress and the courts won't contest his/her action. But it's time to force Congress to do its job (which it actually did in this case) and not let the Executive branch rule by decree.
There are no checks and balances. If there were you would have universal Health care, Cuba would be a vacation spot and the 500 missiles surrounding Russia would not be there.
Venezuela would be left to its own social democracy and not being invaded by the U S for the Two dozen families who control 70 % of the economy.
Domestically the 80% who want gun control would get it, the Republican corporatists who loose elections except for the electoral slavery college would not be voting for the War dept that takes 56% of discretionary funds.
Federalist society has 4% of the lawyers and 70% of the judicial nominations. Neither a check or a balance.
Checks and balances. I could go on poking holes in this illusion which used to be a very aspirational concept until a choice was made to destroy those checks and balances Mitch McConnell!
Wake up!
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@Dwight McFee Mitch McConnell won’t “wake up” because he and others like him are benefiting from the status quo, which they therefore have no reason to change.
2
Professor Chesney does a fine job of pointing out the many legal risks of the president’s actions and the potential for lasting damage depending on how the courts ultimately rule. One issue that was not addressed is the question of whether Congress is constrained from giving away its constitutional authority. The emergency powers that Congress has bestowed via statute on the president are problematic insofar as they transfer power from one branch of government to another. Is there no limit to the power to cede powers vested by the Constitution in one branch to another branch, even if that transfer is done by statute? If there is no constitutional check on that process, what prevents a Congress from granting the president the authority to levy taxes? Or declare war? Or, as he is arguably doing in this instance, authorizing spending from the Treasury? It is not enough to ask whether Trump’s actions comport with the existing law, the larger and perhaps more important question is whether the law is constitutional. And if so, what are the limits, if any, on future laws that at least arguably rewrite the Constitution without following the process for amending the Constitution?
4
Easy argument:
“I could do the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster." ...
"...BECAUSE IT IS AN EMERGENCY."
I really wonder on which side the Conservatives on the SCOTUS will come down? They have to know, that they will be making Precedent. And trump's Executive overreach in the areas of the Congress's financial purview and Military necessity are alarming. Will they want to open the door for the next Democratic President who declares a National Emergency about Climate Change, Guns or Healthcare?
Bottom line, will they want to support an obviously flawed President like trump?
3
Deference by the courts does not mean acquiescence. The Act by it's plain meaning is limited to national emergencies of a military nature and allows for military construction on military land (including such land obtained by eminent domain). The perimeters of the statute coupled with trump's legal admission that there is no emergency renders the constitutionality of his emergency declaration a slam dunk and I disagree that trump's emergency mess means danger for the courts. Of course though, as the last two nightmare years have shown, I've been wrong before.
1
Or this could be Marbury v. Madison moment, when the court clearly defines the limits of presidential power vis à vis the separation of powers between the branches of government and the intended checks and balances (are you listening, Supreme Court originalists?).
4
The primary branch, Congress, has created problems for the other two branches by the abdication of its powers. Congress created the imperial presidency of Trump by doing the one thing it does best-nothing. Now the executive branch is pressuring the judicial branch to be complicit in its power grab and the courts normally give any President latitude on discretionary powers. The Constitutional Crisis has been as Dylan would say, a "Slow Train Coming" for decades but the epicenter is in Congress. The people pay Congress to compromise and cooperate and Congress will not. Presidents and the courts pick up the slack. Obama and Trump were elected for the same reason by the same people for one purpose; to end the long Congressional holiday and legislate. Bush the Lesser offered an immigration plan 15 years ago with a path for dreamers which, if passed, would have precluded the other two branches from dealing with a legislative duty.
1
The sidebar point is that it didn't take Cadet VeryGoodBrain long to find an extra $8 Billion (+/-) lying around in the $700 Billion DOD budget. Anybody who has ever served is well aware of our country's stunningly wasteful MIC spending.
We throw more at our War Machine than the next dozen or so nations combined. Most of those countries are our "allies" (at least until Cadet VGB insults them away) and the rest are big trading partners.
That $700 Billion is only about half of our total War Spending which includes; debt on Chickenhawk George's unfunded ME misadventures, VA, retiree pay/healthcare and the military components of DOE. NASA, FBI, CIA, Homeland "Security", ad nauseum.
Eisenhower was right.
9
@Miss Anne Thrope Agreed. You and Eisenhower are right. The USSR fell apart, not because of Reagan’s histrionics, but because it bankrupted itself. And the US is on a similar path. Which is very sad.
2
Curious whether Thomas and Alito will stand by their "originalist" principles and decide the Executive does not have the right to end-run Congress which has at least (4) times in 2 years refused to allocate these funds in the quantity the Executive is scooping up. (I don't think Congress has ever put more than $5.6B on the table)
3
Here we go, down the slippery slope of courts being so political that appropriate decisions, worded carefully may be beyond reach. McConnell is doing everything to ensure that ultra conservative, often unqualified judges are placed in appeals courts throughout the country. And, since the Supreme Court already appears to be stacked in favor of ultra conservative politics, I'm not sure democracy and separation of powers will continue to be ensured. I'm already incredibly skeptical....
8
I watched the NBC tribute to Elvis last night and am forwarding his message to people in power in OUR political/legal/military/ secret services complexes:
A Little Less Conversation and A Little More Action.
Remove The Con Don, Minister Pence and Traitor Mitch McConnell NOW and put Speaker Pelosi in charge.
WE THE PEOPLE DEMAND IT.
7
By reaching his hand into the cookie jar of congressional approved allocations Trump is doing what he has always done: play a shell game with other people's money. He has a long history of such behavior, Trump University for one. Once this reaches SCOTUS the five conservatives will be hard pressed to not take umbrage with Trump's trampling over the constitution, which explicitly empowers Congress to allocate and oversee federal spending. If Trump were to win this argument, imagine the precedent it would set for the expansion of executive power. Future presidents could treat Congress as a repository for their pet projects.
8
Deference may have a long tradition, but that doesn’t mean it is wise or has solid constitutional footing
All executive decisions must be required to have sound facts to support them. If the executive is relying on its knowledge and expertise, then it should be able to make a solid case for its actions based on that substantial evidence and expertise. If it cannot, then the decision isn’t rationally grounded. In the words of the California Supreme Court, the decision maker should be able to set forth “findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” This principle that the executive branch has to be able to lay out a logical path from evidence and decision is a good one for courts acting as a check on the executive. Good government requires that decisions must have a rational basis in facts. Deference should end when the executive can’t show its work.
Sadly, the federal courts have rather supine in their duty to ensure that executive power is not exercised arbitrarily. Instead of waving airy doctrines of deference around, judges should give a hard nosed review to make sure that decisions are based on facts. Where decisions have facts, they should stand, but where the proffered reasoning is clearly bunk, they should not.
That said, the idea that this conservative judiciary will do anything but defer to a conservative President seems a very remote risk.
3
Well-composed analyses document the conditions in which we live with the election of this ideologue. What isn't clear is how long it will take before we recognize that our norms, precedents and traditions no longer matter. Our democracy has died not with a bang but with a whimpering accompaniment of well-written, cogent and articulate prose in the centrist free press.
3
While I wholeheartedly agree with Mr. Chesney on the danger of constraining executive deference too much, such an outcome may be a blessing in disguise.
Considering the extent to which Congress and the Senate have ceded much of their responsibilities and powers to the executive branch (collectively over the past twenty years) thereby producing a rather anemic legislative branch, such a development might force them into a more responsive roll in better alignment with the historic mandate of the Constitution.
In fact, one could argue much of our current predicament is predicated on a legislative branch that for the first two years of this administration has rolled over and played dead with respect to some of the most abominable actions of Trump.
Perhaps what's most needed, in the end, is a vigorously constrained executive and a more responsible congress (one that cannot hide behind the President and must answer to the American People).
After all, we've never really liked Kings, have we?
7
There is a graver constitutional risk here. Suppose the court decides Trump is wrong. He will not care. Our system of laws depends on people following them. Trump will not. Some earlier president said "The court has made it's decision; now let it enforce it."
Trump is self-annoited king until either he is impeached or the government and military start ignoring his orders, effectively a coup. There are no other outcomes.
7
Would a president's declaration of a national emergency afford him the power to unseat Supreme Court Justices?
Just wondering.
3
@Randy No, that power lies specifically with Congress in having to Impeach the individual. The separation of powers forbids the Executive from doing more with the Judicial other than naming Justices to Congress for consideration and consent to seat as Justices. But the President himself has no such power at all.
2
I would guess the Supreme Court would say no.
I don't see the problem. The courts simply need to say that there is no new information available since Congress passed a budget resolution that did not include the wall. If it was an emergency, then Congress would have known this.
Remember that the Emergency Powers Act allows Congress to over-rule the President's declaration.
So, if Congress has already declared it is not an emergency, then the President has no authority to declare one unilaterally.
4
@Brian The main problem in this case is actually McConnell, who has been allowing Trump to do this. Mr McConnell is needing to be closely investigated himself, with his wife on the President's Cabinet etc and his legally dubious and on the edge of out and out treasonous activity with regard to how he handled the Obama Presidency and now Trump's, with seemingly no regard at all for America's standing in the world, only his own and his party's personal gain, VS great harm to the Nation by his stands and shutdowns of Govt on his watch.
The Main Emergency is Trump, but Mitch refuses to let go of his source of seemingly unlimited power, as long as he controls what comes up in the Senate.
He acts like he is a little caesar, and destroying the America we depend on as he sells out to the lowest morals around and props a phony in place so he can take full personal advantage of the legalistic situation he has created.
4
@B. Honest
Your comment relates to the politics rather than the legal side of the issue. You might be correct, although it is obvious that McConnell did not want Trump to declare an emergency but agreed to support it reluctantly in order to avoid another disastrous shutdown. Trump's negotiating position is that he will burn the country to the ground if he does not get his way ... and he has some credibility in this claim.
1
@Brian Why does it become "Political" to point out the illegal, unconstitutional misuse of the Executive Function of our Government?
It should not be any 'party' that is calling foul, it should be Everybody in Congress that still has their soul unsold to the most radical bidder that is standing up and saying "NO" to Trump's tantrum of an emergency declaration and let us see what Mr Mueller is able to turn up. He has several convictions already, I am interested in how far this list of indicted's goes.
Today's internet and computer programming environment makes it very hard for political and financial bad-actor types to completely cover all of their actions. Too many street cameras with facial recognition pattern files that can tell where they go, what Nations they visited, where their money Really comes from.
These days it is all too public, in many cases.
But it sure makes it easier for people like Mr Mueller to do his job Correctly and Completely. One must remember he has been a Responsible and predictable Lawman, non political aside from being Republican Himself, he has held the neutrality of the FBI itself as sacrosanct, and everyone who knows him knows that.
Let him get to the real bottom of the case and then present it, with whatever potential fallout, to the American Public and let US decide who we want to lead us, not letting EITHER "Party" decide, like the DNC and Clinton's cheating; the RNC failed concerning vetting Trump as being 'qualified for the position'.
The law has a check/balance written in, if the Congress would only exercise its rightful authority. I understand that McConnell compromised to get the budget bill signed, but he has the power to work behind the scenes to muster enough support to overturn a veto rescinding this illegitimate emergency. There is no need to set judicial precedent or risk over-reach if congressional Republicans would assert their equal power to the executive branch.
9
There is a clear and orderly remedy. Executive emergency powers - when it comes to the spending of money - do not derive from the Constitution, but from legislation. If the Emergency Powers Act must be read as giving the President unlimited discretion to call something an "emergency" and divert funds to it, then it transfers the power of appropriating money to the Executive branch, subject only to a three-fourths vote overriding a veto. That would be unconstitutional on its face, and any court concluding that the Act must be read this way is obliged to strike it down. If instead the Act may be read according to common-sense and historically supported meanings of the word "emergency," then courts have ample reason to rule that Trump's declaration is not protected by the Act. Meanwhile, Congress must revise it to make those common-sense meanings explicit. If only this were the biggest problem we face...
8
"Whether the president wins or loses, though, there is a serious risk that the final result will be a dangerous judicial precedent."
Yes. This lawsuit is also about Caesarism, about the Imperial Presidency, and the other constant "States of Emergency" on which the country functions currently about 32, not just one.
It has been pushed, and pushed further, by each Administration in turn. Obama had his reasons (McConnell), and Dubya had his (War on Terror), and Bill Clinton had his, and Poppy Bush had his, and Reagan had whole secret wars (Iran-Contra as one example).
The "emergencies" flowed in renewed annual declarations the moment the current law was passed (1977), and that law was because Presidents were already doing it, constantly since the New Deal and WW2 (yeah, those were emergencies).
Congress allowed it. Congress also made is necessary by its own failures even to attempt to deal with genuine problems.
It is long overdue in the Courts. The pattern has got to stop. If not with this one, then where will it ever stop?
But it is not just Trump who has forced it to court. Every case has two sides, who finally won't compromise without a court.
Finally, finally, finally, someone stood up to this practice. It is past time.
It is also government-shaking, because this is a patch, that has been used to temporize, to avoid having Congress do its job, to avoid doing correctly what the Presidents have just done by fiat.
4
@Mark Thomason
False equivalence Mark.
President Obama acted to protect children who, through no fault of their own, were in legal risk of deportation.
That is what compassion looks like.
You argue that that is the same as a fake business man who, with direct assistance from foreign powers corrupted our electoral process, and became president Bone Spur. He then created a fake crisis; shut down our Government for 35 days because he got insulted; and now has called a fake emergency because he got insulted again. All for ego.
Not quite the same use of the law.
Stop trying to rationalize everything this crook does.
Stop the lying.
3
@Fred Armstrong - It is only bad when done by the guy you don't like?
That is how we got into this mess.
Lying including hiding from the truth. Trump is bad. He did not start the problem, he just carries it on and on.
Solve the problem.
When there is a real emergency, there will be little controversy regarding whether it is.
12
Yes, kateillie, we are in it. The Con Don and his Robber Baron brethren are the emergency.
4
Congress itself provided the mechanism for deciding whether an “emergency,” within the meaning of the statute, is real. If Congress believes that there is not a true “emergency,” then it has the power to pass a resolution of disapproval, and, if the President vetoes that, to override the veto. If that does not happen, then Congress has effectively decided that the emergency is genuine, and for the courts to hold otherwise would mean “second-guessing” both the President AND Congress. I cannot envision any Supreme Court, regardless of its ideological makeup, agreeing to set such a precedent.
6
@lydgate
Why would it take only a majority vote to select Supreme Court Justices; but 60 votes to override a perverted usage of an Emergency provision?
Three secret meetings with Putin.
Mitch McConnell is corrupt and likely compromised.
The human beings offer a vision of the future were Truth and Justice are emphasized and practiced.
The repeat-acons vision is to hide behind a wall.
Stop the lying.
3
Use of the word emergency connotes the presence of a situation requiring immediate attention. It's puzzling that so many pundits are postulating that once this "emergency" gets to the supreme court, the justices will not weigh in on the merits of calling a situation an emergency but instead focus on the question of the original intention of Article 2 (the power of the purse delegated to Congress). Shouldn't the court at least consider the "I didn't need to do this" remark by Trump? Don't the president's words matter?
7
Well that's an interesting dilemma. The president is so far beyond the boundaries of normalcy that court rulings on his actions would have to be also. Plan B: I wonder how many Republican Senators would be willing to stand up to McConnell.
20
The kind of judges Trump is putting on the courts, especially the Supreme Court, don't worry themselves over precedents.
17
This president is a danger to the entire planet, no exaggeration, but the danger described in this piece is negligible. Courts operating in the context of our common law system draw these kinds of lines every day. Each succeeding case has slightly different facts which usually are argued to be distinctive from past holdings by one side and immaterial to the result by the other. Yes, "hard cases make bad law," but easy cases usually get settled or easily disposed. Deference is easy to award or withhold at each extreme; defining where the shift belongs is a classic judicial function.
8
Anytime there is a challenge to a so-called 'POYUS degree', the courts ought never act to permit POTUS to craft something with which SCOTUS can concur. SCOTUS' job is to rule on if a law or proposed POTUS action conforms with the Constitution and or the Bill of Rights, never to provide POTUS with a legal education. This country used to work because it had checks and balances. Corruption is alive and well when law or proposed POTUS actions are allowed to constantly be re-written rather than stand on its own.
4
Given that POTUS attacks the first amendment every day, he is attempting to undo the US Constitution in every way he can. His political court appointees are likely to go along.
2
I feel like this Supreme Court, despite being full of "originalists," would hand Trump any power he wants because the Constitution doesn't explicitly say "avoid giving the President all the power."
3
@John B
The "federalists" created the propaganda-term "Judicial Activism"; because they were unable to win the legal debates of the 70s. (funny how name calling seems to be one of their favorite tools).
But reality shows that it is indeed the "federalists" who practice that which can only be described as Judicial Arrogance.
The Kochs financed the stacking of the Courts with religiously-corrupt-minded zealots.
Money is not free speech. Voter rights issues are still prevalent. Racism is still prevalent. And corporations can not have religious rights.
The Law is a tool for Human Beings' pursuit of Justice.
It was never meant to be a weapon to oppress the masses.
The Truth Project /2020
2
Danger for the courts? This is what courts are for.
6
It is "showdown time." Congress vs the executive branch. Representatives in Congress vow to represent citizens. The vast majority of citizens do not want the wall. It is time for congress to embrace the will of the people and not only challenge the executive branch, but assert their duty and power. How much simpler could it be?
9
@Joseph
It is WE the People versus the Executive Branch!!! And WE the people deserve some huge deference this time!!!
2
The real test of what constitutes an "emergency" should be about gun control given that the NYT - citing the Center for Disease Control and Prevention - reported that in 2018 alone, 39,773 Americans were killed by guns. Our representatives shoud specifically cite that astronomical, horrific number in countering Mr. Trump self-serving, disillusional "emergency" regarding the alleged threat posed by poor people trying to enter our country.
25
The court can easily have things both ways. If the emergency lasts long enough to work its way through the courts, the courts can simply defer to the President but require he seek approval from Congress.
The President controls the military. He or she can commence war for up to 90 days without consulting Congress. However, if Congress does not grant approval within 60 days, the President is forced to withdraw.
Why not apply the same standard to national emergencies? Especially national emergencies involving the military.
If the emergency is determined real and necessary, Congress will support the President's action. If not, no more emergency. The President has 30 days to clean up the mess. We don't need to change precedent in order to enforce intent. Trump's wall isn't getting built in 90 days.
5
@Andy
"Why not apply the same standard to national emergencies? "
We should, but that isn't the way the law is written.
1
@Andy That actually sounds quite fair.
@John Springer
The federal fiscal year ends in September. Trump is required to return to Congress anyway. That's the law.
Let's assume that the SCOTUS defers to the current occupant of the White House on this decree. What will happen following the election of 2020 if he loses and the Senate flips to Democratic? The occupant could declare another national emergency and repudiate the results of the election as caused by voter manipulation and computer hacking by foreign powers hostile to the USA.
If there are massive demonstrations and protests that turn violent, another national emergency decree declaring martial law is possible.
If the the lame-duck House and Senate vote to override his decrees, and he vetoes that bill, will the remainder of the GOP override his veto?
What would the military do? Uphold the Constitution or defer to the Commander-in-Chief?
Things are bad now - they could be so much worse in December 2020.
This could be end of democracy in America.
10
Why wouldn't the same logic that struck down the line item veto apply. The emergency declaration gives to much power to the executive branch and will inevitably result in a president using his ability to shift money around to settle scores with his enemies and circumvent the legislative process. FDR and his feud with the Supreme Court over New Deal legislation,Truman seizing steel mills, Trump feuding with California about being California. The executive branch will always reach for more power and the mischief will never end.
7
The author asks whether the Supreme Court can "second guess" the President. The answer is Yes.
We call it separation of powers.
The real question is whether we have a Supreme Court which values that separation, and its powers.
60
@rds
I’m counting on John Roberts to uphold the separation of powers. He should, and I hope he does.
3
I think the Court (Supreme Court, that is) is likely to sidestep the issues presented in this case. First, they will dismiss a number of the plaintiffs on the issue of standing, or lack of it, to bring such a suit.
Merely having taxes spent does not provide a basis for standing. If it did, then individuals and states could sue the government over every expenditure not specifically found in the budget. Or, also sue the federal government for failure to fully expend appropriated money. That would write the standing doctrine employed by Federal courts out of existence.
The courts are likely to find immigration to be within Federal jurisdiction, and therefore the enforcement of existing law to be within the powers of the Executive. As for whether this did or did not qualify as an emergency, that too will be sidestepped as a matter within the discretion of the Executive, with Congressional oversight. In short, a Political Question.
4
@RM No it's much larger than a political question. It's a Constitutional question. We are talking about the separation of powers and whether a President can declare a National Emergency to nullify the separation of powers within the Constitution. That goes beyond politics to the foundation and principles on which this country was built.
14
@RM I would like to see the standing law weakened. This i a great example of why no one should be denied standing. Every citizen in the country needs to have the right to sue over this immoral use of our resources. Trump has been shoveling national resource into his personal lavish life style from the day he got access. The Congress represents me, they said "No." We have no other way to stop him; we all have standing.
5
Professor Chesney warns of the danger of an anti-deference ruling in general terms but does not make a case for it other than it would be a change from the status quo. But the reigning status quo is not some ideal balance along the branches of our government but an ever-increasing aggrandizement of the executive branch and an ever-diminishing power of the legislative branch. The relative power of the three branches of our government has never been static. It may well be that effective "checks and balances" at this point in our history now require a more powerful Court, with judges who look and argue more directly from existential circumstances rather than covertly from political considerations hidden behind squirrelly legalisms promulgated as a largely bogus "original intent." Justice that blinds itself to what Trump is and the threat he represents, to the manifest intent and effect of his or any future President's self-serving, anti-democratic actions, is no justice at all. If there is danger there, the case must be made with some relevant particularity not simply assumed as Professor Chesney does, largely on the basis of administrative access to secret information which arguably should never have become so extensive nor so secret in a democratic society.
6
WE THE PEOPLE ARE IN A CONSTITUTIONAL CRISIS.
For some insane reason if OUR U.S. House /Senate vote to stop the "emergency" The Con Don can veto it. His own insane bill.
It is preposterous.
Now the International Mafia 0.01% Robber Baron/Radical religion Good Old Boys cabal think they own OUR U.S. Supreme Court and other federal courts. They think nothing will stop them. They would love us to start a civil war - more chaos, more opportunity to steal OUR hard-earned taxpayer treasure and take over.
We cannot wait for or count on the "laws". The Robber Barons have paid to have them work only in their favor. The ONLY answer is for PEOPLE IN POWER to SET A NEW PRECEDENT. REMOVE THE CON DON, MINISTER PENCE AND TRAITOR MITCH MCCONNELL NOW.
27
@njglea
There is a way. Jefferson, Madison, and Hamilton explained how and why in the Federalist Papers. The Second Amendment is one tool, the 25th another.
1
The 25th amendment depends on honorable, patriotic republicans in The Con Don's cabinet, Mr. Sprague. Not an optoin.
I don't know about the 2nd amendment but there is simply no time to use "the courts". Any citizen can make an arrest and NOW is the time for OUR four past presidents and other who have power to do it.
2
The people in power are those people, they will not remove themselves. The rest of Congress is bought by lobbyists for campaign money. The people have absolutely no voice in government no matter who wins the elections. It is the elections that are the game, a diversion so that the people do not realize that they have no voice in their government. And if they have no voice, what are the people supposed to do?
Here is a perhaps bigger problem, legally speaking. A majority of the House and Senate vote to override Trump's declaration of an emergency and rejects his misuse of defense and other allocated funds. Trump then vetoes the bill they pass, but there are not enough votes in Congress to override the veto. The Court must then decide how the war powers act intersects with the constitution, both the ability to exercise a veto and the right of the House/Congress to control the use of federal funds. Can a president clearly violate a law, but proceed unchecked unless there is a two thirds vote against his illegal act? Especially when this involves this president, this seems wrong. But given that this Supreme Court has no difficulty protecting bakers' rights to discriminate based on their religion and the president's ability to discriminate against Muslims, I am very afraid of what they will do here.
22
As we inch closer to becoming less of a democracy and more of a tyranny under a president who knows no bounds, Americans should start to demand action from Congress which at this point is the only way to slow down this juggernaut of an "Emergency Mess" -- since the Justice Department and Supreme Court are already stacked with enough of his allies to undoubtedly come down on his side.
What's at stake here is more than a wall, or loss of land, or drawn out litigation process; what's at stake is the very Constitution which was formed by the Founding Fathers to guarantee that no one person or power can supersede the will of the PEOPLE.
That's why we have a checks and balances system built into our government.
That's why Americans can't afford to stay quiet.
Donald Trump has set a very serious precedent here with his unilateral decision and in doing so, has proven that he is the only "emergency" under the Emergency Act.
23
Congress hasn’t cared about the Constitution for a very long time. It has been all about ideology and budgets making some people rich. It’s kind of late to hope that they will grow some respect for that old document.
If the people want their rights back they are going to have to take them back, no one is going to do it for them.
@Bobotheclown
If Republicans were still in control of Congress and all three branches of government, I might be inclined to agree with you -- but at least some semblance of the checks and balances system the Founding Fathers originally saw as a way to prevent tyranny is back in play, and the PEOPLE made that happen by voting in the midterm elections.
1
To date, Donald Trump has undermined the law by fomenting violence, undermining law enforcement, attacking the credibility of specific judges and the judiciary as a whole, and treating himself more like a king than a president.
Given all of the other things Trump has done to undermine the rule of law in the US, this particular attempt to push the courts--especially after packing them with his own appointees--is sadly just par for the course.
This brazen attempt to undermine the role of Congress and break Constitutional norms is yet another plank supporting a case for impeachment.
27
@Jacob Sommer
Jacob, we all have to realize it is not just Trump...McConnell and the majority of the Republican Party support Trump..mostly out of fear than anything else. Nancy and the Dems stand up to Trump, but she (they) get little coverage in the News Media compared to the president. I think this coming election will either save this country (by removing the failed Republican Party) or the America I fought for will be no more.
15
It seems like the only remedy left is impeachment, which the Senate will block. Therefore, there is no remedy. So what we have experienced over recent years is a slow moving coup. It has finally taken total control of the three branches of government and we will see an ever increasing rate of “norm breaking” until the underlying authoritarian and undemocratic system reveals itself. Sadly, when it does, the public which has been conditioned to apathetically accept anything will also accept this. The revolution will come without firing a shot and our world will end without a whimper. America will mindlessly March into history as yet another failed democracy that gave way to the universal pattern of strong men leading weak people into the endless misery of the human race.
1
Congress erred in writing the statute as it did. Sadly, this is not an atypical error --in the modern era Congress has been only too eager to hand its own authority to the executive, subverting the checks and balances built into the Constitution.
Surely, one of the defining features of a true emergency is shortness of time in which to act. If the situation calls for an immediate response leaving no time for congressional deliberation, then it makes sense to empower the president to take needed action in defense of the nation.
But that is not the case in regard to the proposed border wall. Trump himself admits that there is no urgency; he simply didn't want to wait for Congress to act. Moreover, Congress had entertained his request for additional funding and allocated a smaller amount than he requested for border security.
Frustrated by his inability to bend Congress to his will, Trump declared an emergency. Congress can and should pass a joint resolution rebuking the president and ending his faux emergency. But Trump can veto the congressional resolution and it seems doubtful there will be enough votes in the Republican controlled Senate to override a veto. Indeed, it's not clear that enough Republicans in the Senate will have the courage to break ranks with Trump and join with Democrats in passing the resolution.
So it seems likely that the courts will have to decide the question in the end.
15
If the Senate cannot pass a resolution that says that the Senate has power over the president then the Senate might as well go home. They obviously don’t want to be Senators.
2
Behind Prof. Chesney's sober analysis is a deeper truth: every system of human collaboration, governance, or society relies to a considerable degree on trust among the participants. The Founders who wrote the Constitution understood the limits of trust very well, and carefully crafted a set of checks and balances to ensure that our system didn't require too much trust (like, say, a monarchy requires in the capacity of the ruler, then the (mad) King George III). Too little trust is equally pernicious, though, as recognized in one of the actually wise things Ronald Reagan said: "trust, but verify...."
The problem is that Mr Trump represents a style of politics the operates systematically by undermining trust wherever possible. Republicans (mostly) have been eager to undermine trust in government for a generation, but Mr Trump's has taken all forms of sowing discord to a higher level. In the end, it is not possible to write rules for a player whose method is to trash rules. Deference to Presidential knowledge requires trust the the President is not a rogue player!
I hope the courts will recognize Mr Trump's focused and intentional attack on the trust between Congress and Presidency, between people and government, and among people, and will craft a careful excoriation of his lawless behavior that leaves room for future Presidents and Congresses to trust each other (not unquestioningly, not naively, but in recognition of their common part in our system).
24
All of these people took an oath to defend the constitution. As Trumps actions become more and more clearly dangerous to our country, our system of government, and our constitution, when will our leaders start honoring their oath? That oath has no escape clause based on ones ideology and no excuse based on political difficulty.
Right now our leaders are operating under the excuse that they do not see the danger to the constitution of what they are doing. How long will this ruse last? What will we and they do when we all see it but they still refuse to act?
1
It should not be up to the courts to determine an emergency. In theory, an emergency is such that we have no time to lose.
Obviously, an emergency this is not. Not when the president openly talks about "doing the emergency" for months, not when he says "he doesn't have to do this", not when his next move after "doing the emergency" is a 3 day golf vacation.
We have a mechanism to counter an abuse of the system, and its not the courts, its congress. The enabling supplicant Republicans will give Trump his emergency and we will have a wall. YUCK.
But in the immortal words of Brett Kavanaugh, "what goes around comes around", And I look forward to future Democratic presidents getting all the great things we want done while Mitch McConnell has to impotently contemplate how we got here. Republicans are going to hate this precedent far more than I hate the wall I am sure.
10
@Bob
The Republican hacks serving as Supreme Court Justices will rule in favor of the Republican policies and block the Democrats proposals. It is as clear as day. Democracy has been dead for some time.
1
This excellent article is the best analysis of this situation in print so far. The fact remains that if this admitted faux emergency declaration stands we have a situation where the executive rules by fiat. A clever staffer can cast anything into a military emergency and invoke dictatorial powers, making the courts and congress pointless.
12
@Tibby Elgato
I'm trying to figure out how I can take Dr. Chesney's course. This is indeed the best article I have seen on the subject. Appreciate.
7
I don't find myself worried that SCOTUS won't be deferential enough. I think that the general view among the right now is that it's all politics all the time and that courts don't need to adjudicate political disagreements. Shutdowns and vetoes -- they seem to think -- are enough.
1
"The executive branch as a whole possesses access to information, expertise and experience that are critical for sound policymaking"
Information? In this administration, ignored. Expertise? In twittering, perhaps. Experience? In little more than going bankrupt, cooperating with mobsters, and spinning outrageous lives.
In power, incompetence is as dangerous as pure malice. Here we have both. How will the courts handle that?
17
Funny how when Democrats want to build infrastructure or use money for the public’s ( tax payers) benefit,the radical right, the moderate right, the right in general screams “ over reach”
But when one of their own ( nominally) wants to steal private land in the name of a political stunt, their is no problem.
All day long with these hypocrites. All day long. Go straight to h—-, do not pass go, do not collect $200
17
This is all true enough. But it misses a larger problem. Despite the myth that is pounded into us from infancy, the much revered CONSTITUTION isn’t really the magical solver of all problems after all. Three branches of government, Separation of Powers and all that mumbo jumbo notwithstanding, the Constitution often creates problems rather than solve them.
Did the Constitution end slavery? No, it didn’t. It took an incredibly bloody civil war to do that. Only after that was decided, was the Constitution adjusted to reflect the outcome. Did the Constitution prevent the election of Donald Trump in the first place? No. Insofar as it is held to protect the Electoral College, it enabled it. Did the right to a jury trial prevent either the racist mass incarceration that followed the Civil War or the racist mass incarceration taking place right now? No, it didn’t. Does the Second Amendment stop either tyranny or crime? Obviously not. Instead it enables the death and maiming of many men, women and children every single day.
It is long past time to revisit the white male property owner oligarchical form of government sanctified by the Constitution in the first place.
23
The Bill of Rights is a strong set of principles to base a government on. But no one can make people follow the rules if they don’t want to. So it doesn’t matter what you chose to revisit, what you chose to change, what matters is the character of the people as a whole and what kind of society they want to live in. And it seems that Americans want an unequal racist society run by the wealthy who exploit everyone else. Americans are crazy, that is the problem.
1
The real question is whether the Supreme Court will follow the law. Or, the ideology of the 5 “conservative” members, at least 2 of which were appointed by dubious acts of the bonkers billionaire-run GOP.
30
The SC may be an extension of the republican party at this point rubber stamping pretty much anything put in front of them, but even a partisan shill has to be a smart guy to get there. They have to grasp that allowing trump's fake emergency opens the door for the next dem president to declare guns and climate change are emergencies, with no judicial oversight.
I don't think the constitution or the law outweigh partisan politics on contentious issues before the courts anymore, but I also don't think a partisan approach leads to approving trump's fake emergency because they know what 2020 is bringing. I bet they'll find some way to block it.
HE WANTS TO BE A DICTATOR!
NO! NO! NO!
The courts must stop him now.
10
President Trump - “I didn’t need to do this.” Case closed.
458
@John Taylor Well put. And no doubt in a true emergency, this man would freeze in inaction.
16
@John Taylor You hit the nail on the head. I have worked in eminent domain for many years. The first requirement to take someone's property is necessity. I think the landowners have secure standing. I'm not so sure about the others.
14
@John Taylor
But he did need to do it if his goal is to further along and prove his dictator chops.
Sadly we are distracted with the shiny thing: the wall, and not up in arms over his power grab. Seems no one really cares if the republic and its constitution are an on-going thing.
6
The real message of this article: Get ready to lose in court, anti-Trumpers, so try to put a good spin on it.
2
The writer lost me with his use of the term “second guess” to describe normal judicial review of a matter. Odd.
3
Forget all the hoopla this is proof positive that the Republican Party is no longer serving the American people but there own whims. The republicans rolled over for Trump every time and McConnell is the leader who sold his rotten soul years ago. The people must wake up and vote these constitutional nay sayers out and punish the Republican Party for a long time to come.
35
But they rigged the election system to get the power they now have. And today’s rigged system will not allow the people to take back power. They have built a wall around themselves in the law.
Following the playbook of other dictators and madmen in positions of power the world over, he's on a slow and steady progression to declaring war on some sovereign state, maybe Iran. When this fails, as it must, and the Mueller noose closes, the next thing we know he'll invent a fake war with real lives lost. When oh when will the GOP grow a spine and when oh when will their own espoused principles, including patriotism, start to matter over petty politics.
8
@Lively B - The answer to your question is: never!
1
We continue to fall down the rabbit hole with this inexperienced, inept, reckless (and scary but ridiculous) administration (while Mitch stays mute.)
Certainly, as a matter of law, there is legal deference to the executive. (implicit in that is that the executive is not bonkers...)
But what happens when, as a matter of fact, the executive just makes stuff up?
Courts must rule on not just on "the law", but on "the facts" as they apply to the law. The two are inseparable.
In other words, the court must ultimately find that there IS an emergency in order to apply the deference that Trump demands.
Of course, as a matter of fact, it is impossible to do that. Thus, as a matter of law, Trump's mad rant must fail.
Unless of course, the court co-opts itself, rules in a vacuum, and becomes another rubber stamp for Trumps' malignant lunacy (just like Mitch)
14
This seems to be a typical Trump ploy judging by the thousands of lawsuits that he’s involved in. It’s a way to stall for time and possibly bankrupt the opponents. I imagine that Mick, Stephen, Jared, Pence, Graham are all for Trump’s legal shenanigans. Trump has the GOP Congress members so scared that a few members may whisper some feeble doubts but nothing more. An honorable administration would not take the sleazy ploy of effectively throwing this issue to the courts.
2
I predict that if the cases reach the Supreme Court it will strike down the National Emergency Act on the basis that Congress cannot set limits on Presidential power, because it is solely determined by Article II of the Constitution. And, the conservative majority will refuse to second guess the President's determination that there is a national emergency. They won't address it on the merits. Trump's Republican enablers will rue the day they stood behind this idiocy.
4
@EMiller
you may be right that the SC rules the NEA unconstitutional. If that comes to pass, wouldn't it also mean that trump's emergency dec is void? Thus, he'd have to get his wall money the old-fashioned way: from the congress.
1
@RFW Not necessarily. If the NEA is unconstitutional the Court would essentially be saying that his emergency powers are inherent in the Constitution. Where he gets his money is a separate question (regarding separation of the three branches) and would have to be decided regardless of the status of the NEA. Whatever the outcome it will probably not be good for us in the long run of history. Unless Roberts discovers his Cowardly Lion courage once again and writes an opinion that keeps things simple.
There are many grounds for reversal of the Emergency Order, from procedural, to material mis-statements regarding the emergency itself.
What may emerge are the racist foundations of the Emergency Order, material deception regarding the effectiveness of the wall (that could be lying under oath when presented in court) , and the racism of the Trump Base that he originally found with his 'Birther' nonsense.
Trump is trying to retain his base, full stop.
The legality of the Emergency Order and the efforts to build a symbolic wall that will not contribute to Southern Border security.
The Wall will barely contribute to stopping drugs at the border, and it won't address the very large percentage of illegals who over stay visas and who come largely from Asia - they flew here.
So it will be a circus in the courts, and a waste of time and money.
4
The next from last paragraph tells the answer: The final judgement needs to uphold the cited authorization, so it can be used in future legitimate cases, but deny this particular instance on grounds of not satisfying the law's restrictions and being ordered by a capricious, incompitant, narcissistic, and deceitful president possessing restricted moral sensitivities.
"Exceptionally rare instance" fits Mr. Trump's egregious Reichstag-fire-like abuse of his office. The whole point of the emergency prerogative is to enable the president to act without delay when there is not enough time for Congress to deliberate. But in this instance Congress HAS deliberated and voted against the Wall. It is imperative that our courts rule against this "exceptionally rare instance" in which a reckless man elected with foreign help and likely acting under black-mail by a foreign power seeks to subvert our system of checks and balances -- against the very oath of office which he swore.
3
Indeed. Let's pray that the Constitutional protection of checks and balances is upheld; but let's also hope that that executive authority remains an honored and guiding principle for our government going forward.
We'll need a leader someday, after all.
(Heck, we could sure use one now)
3
@Allentown
forget 'praying'; let's 'take action to demand and ensure' that the Constitutional protection of checks and balances is upheld.
1
Perhaps the Supreme Court might pull a Marshallesque move- the administration meets the legislative requirements, but the legislation is an unconstitutional limit on the broad powers as commander in chief.
This then sets up a much broader conflict between two Constitutional grants of powers: the purse v. the commander. Then can the court consider lies, a congressional history of not budgeting? Clueless here.
You mean like striking down DACA? Obama and the Dems along with the 9th Circuit are all about expanding power when it advances their beliefs. Their only reluctance is when those actions are then turned against them.
1
10 USC Sec. 2909 and 33 USC Section 2293 allows presidents in case of emergencies to divert military funds, personnel and equipment provided there is a threat to national security. Previous presidents have diverted troops to the border on many occasions to interdict drug smugglers and illegal border crossers or to build refugee camps. Troops are presently deployed on the border to assist the Border Patrol.
In its 2019 Worldwide Threat Assessment, the U.S. Intelligence Community started ‘We assess that high crime rates and weak job markets will spur additional US-bound migrants from the Northern Triangle—El Salvador, Guatemala, and Honduras—while a political crackdown in Nicaragua dims that country’s already bleak economic outlook. Illicit migration northward from the region shows no signs of abating, despite increased messaging by governments to dissuade potential migrants and stepped-up immigration enforcement by Mexico. . . Migration is likely to continue to fuel social and interstate tensions globally, while drugs and transnational organized crime take a toll on US public health and safety."
This is an appropriately sober piece setting out the consequences of this latest selfish and thoughtless decision.
The same logic applies to so many acts, but not only of this administration.
The real problem is McConnell and his feckless leadership of the Senate. Beginning with the baseless, irrational and destructive blind opposition to the ACA, through the unconstitutional refusal to process the Garland nomination, his scorched Earth approach will, I trust, earn him a permanent place in historical infamy. If he had any sense of service, commitment to democracy, or even basic decency, we wouldn’t need to debate whether the Supreme Court, padded with lackeys that are more his doing than the President’s, can save us from further erosion of what has, in fact and despite recent misappropriation, made America great.
Talk of impeachment or treason has the wrong target. McConnell’s High Crimes and Misdemeanors, and the danger he poses to the Republic, are in plain sight for all to see.
3
Why is this court challenge the president’s fault? The states have zero say in foreign affairs and border protection under the US Constitution. The state officials are pandering to their liberal constituencies and creating constitutional crises. It takes two to tango.
2
Professor Chesney's overall point is a good one, but what it points out is that a certain level of trust and responsibility is necessary for performing all jobs. You cannot legislate trust. Unfortunately Trump doesn't even trust himself. He cannot correctly complete the jobs he agrees to do. If I agree to build a house for you and walk off the job the minute the first payment arrives and I can get away with it in the courts I have removed the very structure of a contract, where something is exchanged for something else. Trump, it turns out, does not even value contracts. When pushed, what Trump turns to is theft--we give, he takes. To empower such a thief, as we have done, is indeed to destroy the very edifice of law itself.
324
@Hazlit The key to our government is that everyone understands the rules...but written and unwritten. It is one thing to push the edge of a rule but in the case of Trump, he disregards the entire system or even the existence of the system of rules...with total disdain. That is the nexus for the problem with Trump. He doesn't respect our governmental system and as such, he has no compunction to destroy it without true regard to history, convention, tradition. He is dangerous to the core of our democracy for that reason which is the reason that this issue should not be settled by the courts but by the "co-equal" legislative branch whose power he is usurping. If they disregarded the issue of the wall and voted with an override to overturn the declaration of emergency because it is the right thing to do for our system of government-that is the best and lasting solution.
41
@Hazlit The contract Trump has with the nation is his promise to faithfully execute, protect, and defend the laws of the United States, and his consideration for these services is the concomitant salary, residence, and other perks consistent with his high office. His violation here goes way beyond trust, since he is personally violating the laws he's sworn to protect, while mulcting the populace for the personal benefit of himself and his family. (Oh, there's also treasonable activity in concert with Russia.)
27
@semari
There are six words in the oath that you failed to mention: “(T)o the best of my ability.”
Trump is indeed preserving, protecting and defending to the best of his ability and it seems obvious that he do no better than he’s been doing. That 300+ million people could do that far better is neither here nor there.
4
The Supreme Court will do what it did in Bush v. Gore: when faced with a politically charged case, they will try to make their ruling as narrow as possible. According to this article, they can do this by focusing on the specifics of the land acquisition, punting the bigger issues. The holding can read to the effect that, "Assuming but not deciding that the Emergencies Act allows this declaration …." and then address the specific land issues.
It seems that either way this turns out, the Democrats win. It the courts rule against the national emergency, it looks bad for Trump with his base. If he wins in court, a precedent is set and when the Democrats gain the Oval Office, real national emergencies can be be declared, i.e. climate change, gun violence, runaway deficit, opioid crisis, infrastructure.
1
The role of the Supreme Court is to determine the legitimacy of the Constitution, not to make a farce out of the separation of powers. Lower courts determine the facts. Higher level courts examine the operations of laws to determine equity and statuatory language interpretation.
Here we have a situation where the facts contradict the emergency declaration. But with conservatives holding the majority of the S.C., it will be to great a hurdle to ignore the textual language of the Constitution. That could mean the will to avoid the core question by failing to grant certiorari, deferring to the lower courts decisions. Justice Roberts will insure the S.C. will not be embarrassed by foolish decisions.
3
So, if the lower courts find either way - YEA or NAY, must the Supreme Court hear this one? Don't they have the option to pick and choose the cases they hear and, might they defer on this one to avoid either arc of that pendulum described in Chesney's essay.
If neither the legislative branch nor the judicial branch can overrule a president's declaration of a National Emergency, then there are no checks and balances.
It worries me that Trump may have loaded the judiciary with enough partisan judges that we will lose the remaining checks and balances in our government.
8
You pose the ultimate question. Can a court find a President's decision to declare an emergency arbitrary and capricious and invalidate the determination? One can easily imagine absurd situations- a president finds that aliens are planning a ground assault on the White House so he or she declares and emergency and directs the construction of a wall and moat around DC. But if a Court can find such a declaration invalid where is the line drawn between a patently reasonable national emergency and a delusional determination, or, as in this case, a political stunt (particularly when Congress would not support the idea)? Which branch of government should make the ultimate decision and what standards will apply? Very interesting Constitutional issues. With changing American demographics I predict that the R's, particularly conservative R's, are going to long regret Trump's actions.
4
You say the executive branch holds access to much information, expertise and experience that are critical for sound policymaking, but this President has proven that he ignores such advice. Thus he is impervious to sound policymaking. As such, no deference should be permitted.
10
I understand Congress's intent with the laws regarding National Emergencies. They were written with assumption of men of good faith and character serving as the president would use them in accordance with their intent. They didn't want to write rules that might hamper a president in times of a unforeseeable real emergency.
Think in terms of what Justice Potter Stewart said about obscenity but with an eye to toward emergencies "I shall not today attempt further to define the kinds of emergencies I understand to be embraced... but I know it when I see it ..."
But a lot of trust hangs on "men of good faith and character". Had Congress been thinking about "people of good faith and character" you can bet that they would have written into the laws some definitions and restrictions if they considered that a woman could be president. Since women can't be trusted more laws and definitions are needed to make sure she doesn't do the wrong thing in men's opinion - such as those that exist and are proposed around her life and her reproductive abilities.
But I still think we should be able to use Justice Stewart's measure. When taken into consideration with all that is going on, including a mass shooting the very day Trump declares the southern boarder a national emergency, would we know it when we see it? And is this it?
2
Congress has a legislative remedy. Let them use it. The judiciary would be wise to defer to the legislative branch.
7
@Tom
Not quite, they don't have a veto proof majority in both chambers. They'll pass a joint resolution with simple majorities, which would have blocked the fake emergency when the law was written, but a supreme court decision after the law was written now means that the president can veto the JR unless it has a supermajority behind it and there are not enough republicans with spines for that. It's a situation not intended or envisaged by the legislators who wrote and passed the law, but that's where things are today.
Well hey, trump's voters said they chose him to "shake things up". Are we sufficiently shaken?
It's likely that the zealots in the White House haven't bothered to create a record to sustain a finding of "emergency" or of a nexus between the wall and the identified emergency. The "wise and powerful Oz, oops, trump" has spoken, and that is all they think the courts will need. Perhaps the courts will explain to trump and his minions that he is president, not a king.
4
The important subtext in Mr Chesney’s essay is that statutes and court procedures devised for rational, thoughtful, wise, and patriotic presidents have been jeopardized by a irrational, impulsive, capricious and treasonous president, put in place by the efforts of a foreign enemy, with the aid and support of a corrupt and malevolent political party and the votes of millions of aggrieved and uninformed people in this once-great nation. I fear that after these four years, it will not be possible to restore those democratic foundations on which the nation was built.
55
The primary reason that Trump won a near majority and that he would do the same today is the support of wealthy Americans. Money.
4
@Ockham9. Rebuilding might be possible if the citizens of Kentucky get rid of McConnell and most of the sycophantic Republicans. The Party ought to be embarrassed and shamed by its refusal for years to create compromise legislation to help ordinary Americans. But they hold to a philosophy that is so far into the exultation of the individual as an absolute value that recognition of the contractual nature of the Constitution is an archeological remnant of the past for them. This Republican Party acting as an extension of corporate America has been destroying the norms of and the Contitution itself for decades. Patriotic people do not vote Republican any longer.
4
If Roberts is all that stands between partisan hacks on the GOP side and reason in general than the court system is truly in jeopardy as believable arbiters.
20
We are a nation of laws not of men; that's why our constitution has the judicial framework its does. There are only two things we as citizens have to stop Trump our vote and our courts. Trump has lost time and time again in federal and state courts on many different issues DACA being just one.
I also rather have these judicial battles than make 800,000 + the innocent lambs of Trump whim and temper tantrums.
7
Perhaps the best way to determine what course the courts might be advised to take in their thinking is to postulate, for the sake of argument, that Trump is in fact a King, or indeed the current Emperor of the United States, and has issued an edict identical to his faux declaration of an "emergency" with the intention to seize privately owned land, divert funds that have been sequestered for individual States, use military money for a non-military construction project -- an edict that openly prevaricates in the face of universally verifiable facts and statistics. These would include the historically lowered number of crimes at border crossings, truth of drugs not flowing across the border but rather at ports of entry, and completely demonstrative evidence that there is no invasion attacking our country, and further that the crime rate from immigrants is lower than that of the general population. In short...his edict is all based on lies, and in fact the King has mentioned parenthetically that there's nothing really pressing about having to address the "problem" soon - except that he'd rather do that to save time. I think, in response, an enlightened population might (in the spirit of the Magna Carta) write a Constitution similar to our own, and force the King to sign it or leave town and be removed from his high Office. So...we actually have this Constitution. What are we waiting for?
15
We have three branches of government in this country. Executive, legislative, and judicial. Each is supposed to balance out the others. Yet in the last 10-15 years what we have seen has been a combination of outright sabotage by the GOP when it came to Obama, spinelessness when it comes to Trump, and in the judicial branch because of how political higher court selections have become, way too much deference to conservatives.
Whatever happens with this Americans should keep in mind Lincoln's words at the Gettysburg address about government of, by and for the people not perishing from the earth. It is disappearing in America as we hand more of our government over to the moneyed classes who consider us beneath their consideration. I refer to the Koch Brothers, the Adelsons, the Mercers, the Waltons, etc. Look at who is in Trump's cabinet: rich people who think nothing of reversing rules and regulations that make life better for us.
The problems now come from the mulish refusal of the GOP to check Trump and the imbalance of power between the oligarchs and the rest of us. Having an incompetent president who can't seem to listen to anyone on anything merely worsens things.
Trump should be rebuked. The judicial branch needs to exercise its power to hold an overreaching incompetent president in check since the legislative branch, courtesy of the GOP, won't.
22
Lincoln’s idea of government is long gone and no body cares. People today cannot even imagine what it is to be free. They think being a wage slave for bankers is freedom. When you don’t know you are wearing chains it is very hard to break them.
2
Yes, this President is sliding down a slippery slope and our fear is that he will take the Judiciary with him. He has already destroyed the Legislature and he has peppered the Judiciary with ample applicants that pledge allegiance to the Federalist Society.
We have arrived at an apex that all three branches of Government no longer defend nor support the Constitution. It is unknowable, at this juncture, that we can regain the mantle of Democracy.
12
@Carol Donald Trump did NOT destroy the legislature; it was already a train wreck of lobbyists, dark money and Republican insolence during 8 years of Obama. Trump is the end result, not the etiology, of what is wrong with politics in America today.
2
But Donald Trump as president is the "loaded weapon lying around." He is emotionally, psychologically, intellectually, educationally illiterate and is incapable of presiding over a complex nation. Those who voted for him took all of these negatives into due consideration and gave him their confidence that the narrowness of his vision would suffice in any situation.
Far more dangerously, though, is the current makeup of the Supreme Court. The Chief Justice, John Roberts, may be expected to be the thumb in the dike holding back the bursting tide of right-wing activist judges now flooding the lower courts--as Mitch McConnell, the Senate Majority Leader--intended. The Right, rather than encourage a president to review the histories and jurisprudential temperaments of judges for the Court, have made rigid ideological thresholds the absolute starting point for nominations. They wish a permanent and loaded weight for the Court so that their worldview about society and its politics and its people may become iron-clad in the way that it distributes the wisdom of its wealth.
Justices Neil Gorsuch and Brett Kavanaugh demonstrated, in their confirmation hearings, that they would give the executive broad latitude in matters of privilege. The danger to the Republic in the future is that any presidential whim will now be the benchmark for emergency matters.
But Donald Trump destroyed the mold for rectitude. That's the danger. No serious person can expect impartiality to be his hallmarks.
31
A little-mentioned fact is that because the proposed route of a wall in the Rio Grande Valley would not be built right up to the Rio Grande River - the international border - that U.S. land south of any such wall and the north river bank is essentially ceded away, or becomes some sort of "no-man's land".
The U.S. should never 'abandon' or fence off lands that it owns.
Also, the U.S. government shouldn't be flagrantly disregarding private property eminent domain rights - i.e., breaking the law :
https://www.npr.org/2019/02/13/694173820/butterflies-v-border-wall-national-butterfly-center-seeks-restraining-order
For these reasons, all the ones Chesney mentions, and the unmentioned sacrosanct 'water rights' of Texas land-owners, Orange Jabberwock 45* creates a legal quagmire which will still be raging long after he leaves office.
But Weasel 45* knows this is all circus-craft, since he freely admitted it will wind up in the courts (and thus may not ever get done); just another abysmal episode in really bad POTUS reality TeeVee.
17
The Robber Barons are already cutting down the trees the butterflies have used for millions of years during north/south migration, R. Law.
The law means nothing to them. Destroy and exploit - that is all they know.
People in the area should go stop them. NOW.
The fact that in Trumps own words saying he did not need to do this is the very dangerous precedent that will make Congress irrelevant.
If he wins it in the Courts.
3
Trump’s national emergency resolution doesn't circumvent Congress or usurp the Constitution’s separation of powers. The National Emergencies Act provides that Congress can override presidential national emergency declarations by passing a joint resolution to revoke them. National emergency declarations cannot take effect without Congressional consent.
The Senate voted to end the shutdown and pass the 2019 spending bill only because Senate majority leader Mitch McConnell promised to support the national emergency declaration. The Senate saw a way to give the president what he wants and reopen government at the same time. The only thing the declaration circumvents is another government shutdown.
Those who oppose the border barrier are attempting to circumvent Congress by filing lawsuits instead of urging Congress to pass a joint resolution process because they know they don’t have the votes to revoke the national emergency declaration.
2
@William Case It is quite possible that Congress could pass a joint resolution to revoke the emergency declaration, although the president would veto it; a veto override is unlikely. Furthermore, the president was given money in the budget for border security but for less money than he wanted. And that is why he shut down the government.
1
@William Case
This is the same disingenuous "let the people vote" cry that Republicans trot out when they are confident that they have votes but which quickly goes away in favors of the courts as soon as they feel they don't have the votes.
Congress made its wishes known in the spending bill. Congress also agreed that it would continue working on boarder security as all was not resolved in that spending bill.
Thus is unmistakably the president who is overriding congress and he even admits that that is what he is doing in his own words: “I can do the wall over a longer period of time. I didn’t need to do this. I would rather do it much faster,”
Your own president disagrees with you over this.
1
@Andrea J
Trump never shut down government. He did not veto the initial spending bill, which never reached his desk. The Senate rejected the initial spending bill and passed the compromise spending bill only because the Senate majority leader promised to back the national emergency declaration.
1
A few thoughts. First, based on the reading of the law in relation to "national emergency," I can't see how the court has standing. The law says the president can declare a national emergency. It doesn't say anything about what that means. Replace the words "national emergency" with "snicklefritz whatsis" and the law means the same thing. The military issue is different, that is clear, and a judge can easily rule that in this case what the president is doing violates the law.
All is meaningless however in that this is just another example of how there are no checks and balances in our constitution. The executive is far and away the most powerful branch of government. It has veto power over the legislature, so the legislature has no actual power at all (aside from confirming appointments). Theoreitcally the legislature has necessary but not sufficient control over the budget, though in practice that's not really true. All Trump is trying to do here is completely eliminate the necessary part. And while in theory the judiciary can check the executive, in practice it can't. The executive controls both the department of justice and the military, which means they cannot be checked.
3
People express concern that if the courts decide that Trump has the authority to override Congress in this situation that future presidents whether Republican or Democrat will also be able to do the same thing. My concern is that if Trump gets away with this we won't have to wait for future presidents. Trump will obviously continue to declare "emergencies" and become the autocrat he so fervently desires to be.
22
@Margaret Campbell
Trump isn't "overriding" Congress. If it wants, Congress can revoke the national emergency declaration by passing a joint resolution.
3
@William Case They are indeed overriding Congress's most important power - deciding what projects get funded and to what extent. Here they explicitly chose to fund the barrier at a certain level and Trump declared an emergency to override their choice. Congress will likely sue on this explicit basis. Whether or not they chose to declare that Trump's emergency is not an actual emergency is a different issue altogether.
2
@C
The Senate voted to pass the 2019 spending bill only because the Senate majority leader publicly promised to back the national emergency declaration. The Senate knew the president would declare a national emergency as soon as he signed the sending bill. It wanted him to declare a national emergency. Congress can terminate the emergency of it wants by passing a joint resolution, but it doesn't won't to revoke the declaration.
1
One model of emergency actions would be the actions taken by Lincoln at the very beginning of the Civil War, specifically the suspension of Habeas Corpus. He took those actions at a time of sudden dramatic events, when Congress was not in session, and everything he did was subsequently validated by Congress. In our current case, Trump tried to get his demands passed by Congress, and in fact his demands have been ignored or rejected for the last two years. He is declaring an emergency as way of over-ruling the expressed will of Congress, in a matter which objectively involves nothing new or sudden. This should be easily rejected, but he may be right that Republican loyalists on the Supreme Court will back him regardless of the facts or the law.
It's worrisome that he has been keeping troops deployed on the border for some time now, creating the image that it's a military situation. And there is apparently a precedent, when we look at the several existing "emergency actions", that an "emergency" does not have to rise to the level of a sudden, serious threat. It seems that for legal purposes, an "emergency" can refer to freezing the assets of someone in far-off Yemen or Somalia. This could give Trump a lot of leeway in claiming an "emergency" on the border.
4
Obama did the same thing and nobody went to court, the dems hate the president and will do anything due to TDS.
1
@vulcanalex Obama did not do the same thing. His executive initiatives had broad support, for one. They were also meant to help our country, not demonize people. They were also honest attempts at fixing real problems. As Mr. Chesney points out in this article, Trump's declaration of an emergency is disingenuous at best.
35
@EMiller
Unfortunately, the National Emergencies Act says nothing about requiring "broad support". And one person's opinion that it "demonizes" people and doesn't fix "real" problems is another persons opinion that it protects the country from an influx of people entering illegally who use our resources and take the jobs of US citizens. If it is ruled unconstitutional for Trump it would be equally unconstitutional for all of Obama's actions.
1
@vulcanalex Well, in plain fact, Obama DID NOT do the SAME THING, and, well, in plain fact, the Republicans took Obama to court repeatedly, claiming that he was abusing his authority. But, other than that, your comment is brilliant in its factual analysis and insight.
5
An emergency situation should be clearly understandable by congress. If any president sees a need to declare one a briefing to congress should contain enough information to explain why. If congress does not confirm the emergency the president cannot proceed with any further action.
4
This is a well thought out column. It analyses facts, law and judicial precedent. Fine in normal circumstances. But these are not normal circumstances.
Trump has no use for facts, law or precedent. He craves the adulation of his base. He got them to roar the loudest when he promised them a wall, the Wall. He doesn't want to lose that high. It's his only motivation.
Sadly enough, the Senate majority has lost all concern for facts, law and precedent they fear being subjected to primaries and maybe losing their careers. The SCOTUS Justices cannot be removed, but with Trump's two latest nominations, there is cause for concern.
That is until the next ego-driven crisis Trump pushes us all into. Let's face it, unfit will do unfit. All the time.
36
@William Dufort This is what is so frustrating. We are forced to apply rational procedure to an irrational man-child because the Republican Party cares more about power than government or country and so refuses to do its Constitutionally mandated job. We the People should sue Mitch McConnell for destroying the United States.
4
@William Dufort
While I agree with you in the main, the fact is that SCOTUS Justices can be removed.
As I have stated in past comments, Kavanaugh can be brought before the congress for hearings and subsequently indicted for perjury. It goes to federal district court. Impeachment is a slam dunk.
Thomas is liable for failure to recuse himself in cases where his lobbyist wife Ginny has a financial interest. Impeachment is a distinct possibility.
Depending on Meuller's conclusions, Gorsuch is the fruit of a poisoned tree and at the very least a second confirmation hearing is in order.
1
What if the courts find the person in the president's office is lying- false evidence? The "emergency" is fiction? Is he accountable for wasting military funds in the current deployment, for starters?
22
The problem as I see it is that both Trump and five members of the Supreme Court are transparently corrupt, and put party above country. Contrary to the naïve assumptions publicly stated by John Roberts, both Neil Gorsuch and Brett Kavanaugh are fully aware that they are "Trump judges", and will act accordingly.
The only thing that can mitigate this upcoming farce is John Roberts' desire to not be seen in future history books as a complete laughingstock.
165
@Vesuviano
It is ironic that our best hope is John Roberts. Who would have thought?
8
Trumps declaration that it's not an emergency should be enough for a narrow ruling and that should suffice. The other fact of course is that it takes years to design and build any sections of wall so its not clear how that can be construed as an emergency. Come on Mueller! Hurry up!
21
As we should all know by now, Trump and his Administration love chaos and will attempt to distract the public from the true essence of the matter at hand. But this is a Constitutional matter where the Courts should strictly apply the language of the Constitution before looking at the Emergencies Statute.
All legislative powers are granted to Congress. (Art. I US Constitution). All Bills for raising revenue shall originate in the House (Art. I., sec.7); The Congress shall have the power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the US (Art. I., sec. 8).
The Constitution defines the US political organization. Our Constitution and taken in context of the US Declaration of Independence make clear that the US is not ruled by a King but by a process that separates governmental powers, in particular, the powers of the purse. Congress is assigned the common defense and general welfare of the US. Trump is assigned the role of Commander in Chief who must answer to Congress and the American people. This is the compact made in the 1700's, nothing there has changed. So if there are liberals or conservatives, even strict constructionists on a court, they should (could) arrive at the same conclusion.
10
This is an informative opinion piece for the layman when it comes to law. It is clearly laid out that this is not a state of emergency as defined by the laws involving the military, buying land, etc., so to me the answer is easy. No funding. This reminds me of my days as an Assistant Principal in the Bronx when it came to the school discipline code book. This book or pamphlet carefully delineates discipline infractions which are applied to specific behaviors and have a broad range of consequences, but it is the reading of the code book that is critical. If the crime does not fit the code then so be it. This is especially true for more offensive infractions. So, if this is not a state of emergency (which the state who are suing duly state), then it is not a state of emergency. We cannot let this bully just get away with stuff - he is a bully and I'll avoid another school analogy.
9
It should be no surprise that Trump, an authoritarian leader that has distaste for the basic tenets of democracy, would evoke a national emergency to promote his agenda and the agenda of a vocal minority of his supporters.
The courts must look at the pattern of Trump's behavior, the intent of the Congress in this case, the "merits" of the so-called emergency and dangers of precedent. I believe that the only sensible judgement, based on the facts, is that there is not a national emergency requiring funding for a "Wall" and further Congressional intent is clearly opposed to the Wall and that declaration was motivated by political expediency or worse.
Further the President will clearly use this has a political issue- attacking the Courts and the Congress- extracting revenge- in an effort to de-legitimize these institutions- and anything else that gets in his way.
If this declaration is not effectively opposed- then next we may be see rounding up of immigrants at the border and a usurpation of their basic human rights....Wait... We ARE seeing this. And next, the same acts applied to American citizens. Perhaps that is to come.
So this emergency declaration is in reality the prelude to the destruction of our Democracy- if it goes unopposed and/or is successful.
23
The one to worry about is the emergency postponement of elections because of the danger that only Trump sees. Once postponed elections never come back. We are one declaration away from the end.
1
"If handled carefully enough, it should be possible for a court to describe this as an exceptionally rare instance in which deference fails — the proverbial exception proving the rule."
Basis for the exception is well known. The president doesn't accept briefings; therefore, he declines "access to information, expertise and experience that are critical for sound policymaking." Trump traded presidential deference for tv viewing and telephone consultations with pals.
155
The Constitution specifically vests Congress with spending authority. For 2 years, Congress refused to give Trump money to build his wall. The emergency statute is used when there is an exigent circumstance that needs immediate action and that fulfills the will of Congress.
First, there is no exigent circumstance. Contra the argument of this otherwise excellent piece, no compelling factual evidence shows an emergency. It’s ridiculously easy to prove — just look at Trump’s words and actions. This is dispositive of the “emergency”.
Second, the declaration is violative of the will of Congress. Despite being GOP controlled for 2 years, no money was appropriated for the wall. After an election last November when Trump peddled his wall, voters gave control of the House to Democrats who won’t support a wall. Thus, no support exists in Congress to build a wall. They’ve rejected it many times over 2 years.
The cases opposing the wall can be victorious by focusing on the two issues here. Good litigators know it’s always best to keep it simple to obtain ready relief, and this is likely way the “emergency” declaration will fail.
61
Do we need worry that in the case of a true emergency the courts might limit the ability of the president to act ? I think not, because certainly, in the face of a true emergency, the Congress would jump to the fray, in unison with the president and the courts, and not rely on an "emergency powers act" - just as they have done in order to stem global warming.
4
@eclectico
Yup. And don't forget gun violence
The courts should honestly strike down the National Emergencies Act, Congress is the only branch of government that should be able to allocate funds and the National Emergencies Act directly allows the circumvention of that, I don't really understand how that could ever be considered constitutional.
17
Prof. Chesney's concern is unwarranted. Given the current USSC majority there is no danger whatsoever of a to broad anti-deference ruling. If they do rule against Trump they will surely do so on as narrow grounds as possible.
3
Why does Professor Chesney ignore the fact that that the law provides for a legislative veto by Congress? A Congressional joint resolution would negate the emergency. If the President vetoed it, the emergency could still be negated by a two-thirds majority in each House. That's a heavy lift, but it represents Congressional judgment as to what ought to be required to overcome deference to the President: a strong bipartisan consensus that the President is wrong. Since the statute provides a democratic mechanism for override, unelected judges ought not interfere. That argument will be attractive to judges who believe in judicial restraint. Like Justice Roberts, as witness the Obamacare cases.
7
@Cynical Jack Point well taken. Which supports my previous point that even if Trump declared that, due to a “National Emergency”, he was going to re-direct $5.7 billion from the treasury into his personal offshore bank account, the current Senate would allow it, and SCOTUS would defer to the President as well. However, while you suggest that there are legal reasons for SCOTUS to support the President, and there may be, these will simply be used as an excuse. In reality, they will allow him to do whatever he wishes because they personally support his actions. The pretense of weighing any particular action’s “constitutionality” departed some time ago. I would peg the departure at the point where McConnell stole a seat on the Supreme Court.
2
@Cynical Jack
I think you are right. If Trump is the virus that killed democracy than McConnell is the gravedigger. The same exercise will happen when Trump loses and nullifies the 2020 election and declares a national emergency. There will never be enough GOP votes to over-ride a veto , and there will never be enough Democratic senators as long s Fox News stays on the air.
What will history write? Putin won.
My only hope is that Trump isn't just wanting to poison the well for future presidents and a real national emergency. This maybe Trump's nuclear option for the presidency. I hope this is a wake up call for voters with the upcoming 2020 election. But, alas, there will always be Trump's base supporting him with Finish the Wall.
6
It is not dangerous at all. The National Emergency bill was passed by Congress in 1976 and then signed into law by a President. If Congress deems the law needs to be tightened up or clarified to prevent future abuse they can change the law with a veto proof majority in Congress. The sky is not falling.
1
There appears to be room for a narrow ruling considering that Congress controls the budget. It had twice approved a budget that explicitly restricted wall construction -- the first of these resulting in the longest shutdown/deadlock in our history. The courts can rule that the Constitution does not permit the president to clearly disregard the intent of Congress in an area where Congress clearly has the constitutional responsibility.
This still leaves plenty of room for the executive branch to respond in crises where problems emerge after Congress had already set the budget. That IMHO was the original intent of the emergency declaration legislation.
Meanwhile, this essay omits a third possible judicial option. The courts could toss it all back to Congress by ruling that this is a legislative responsibility because the emergency declaration law includes an explicit mechanism for Congress to overrule the presidential declaration.
8
Trumps ability to persist will ultimately depend on rulings issued by our judicial system.
That’s why Roger Stone and his cohorts attack the legal system itself. They correctly surmise that Trump will admire their effort to break the system and reward them with pardons for their efforts. If they succeed in breaking the system, pardons will become moot, as the chief executive will have become an autocrat.
Plan Putin at its culmination.
60
@RjW. Roger Stone et al. are merely the latest in a long line of Republican corporate operatives bent on undermining the election process and the federal system so that it serves only corporate needs. Their actions are subsidized by the Kochs and others for whom libertarian, “get government out of my life altogether” is the bottom line issue. Literally, the bottom line: with fewer regulations, lower taxes etc. these entities stand to make lots more money and trample over the Constitutional rights of other, ordinary people. This assault has been going on since RR fired the air flight controllers, cut taxes and tripled the debt. But McConnell has to be the incarnation of the Founders’ worst nightmare: a man who knows how to undermine the system from within and does so for ideological reasons with the sure knowledge that his Party members cannot and will not oppose him. In that sense, he is no different than Roger Stone. Both undermine the Constitution: one from within and one from without.
7
I would think that where the legal issue(s) involve(s) an asserted, compelling good faith claim of constitutional overreach, here the Executive’s substantiated disregard for our foundational document’s Article I Legislative appropriation power and authority, a claim of Executive Deference does not properly apply, or at least needs to be sharply curtailed. A high burden, almost an irrefutable one, needs to be placed upon the Executive Branch in such an instance. Otherwise, the Constitution itself could be flagrantly “amended” and improperly undermined by the actions of a competing branch of federal government.
7
@John Grillo like DACA? Disingenuous partisans fail to see the hypocrisy they applaud!
There are two standards that have been used many times that could apply here. First, a government action can be held improper if it is "arbitrary and capricious". That would seem to apply here, given the President's own statements. The second is the "plain meaning" standard. If the word "emergency" ia generally used to mean urgent or requiring immediate action, then clearly there is no emergency here.
117
Where a statute does not contain definitions, dictionary definitions are used. The situation on the southwestern border is not even close to the dictionary definition of an emergency. But that doesn't matter to Thomas, Alito, Gorsuch and Kavanaugh. They would support Trump if he wanted to bring back slavery and would oppose a Democratic president who declared a national emergency due to gun violence, climate change, failing bridges or the opiod epidemic. The big question mark is whether Chief Justice Roberts will follow the law and the facts or do what Trump wants him to do.
We don't have four conservatives on the Supreme Court. If we did the decision would be 9-0 just like in U.S. vs. Nixon. What we have is at least four and maybe five justices who are prostitutes for the Republican National Committee.
586
And the Republican National Committee -- like the National Rifle Association -- are in Putin's pocket. I can't figure out who is paying the Democratic National Committee to fail so thoroughly, but at the end of the day, the Supreme Court's decision regarding campaign finance (Citizens United) was a missed opportunity to help ordinary people regain our voices. For me, the Supreme Court is at the top of the list of American institutions that betray ordinary people on a daily basis.
100
@Bob
Judges appointed by Trump should recuse themselves from the matter, but of course, they never do, since they are so, "trustworthy.” (Wink, wink.)
If they okayed the Muslim ban they will do anything. The Court is packed, period, the end. Thank you, President Obama, who’s legacy is employment for Republican politicans, (and judges), unprecdented in history. That’s what a centrist/Republican gets us.
The first thing the new Democratic President should do is expand the Supreme Court to nullify the Trump/McConnell appointments. Perfectly legal.
42
@Bob
"What we have is at least four and maybe five justices who are prostitutes for the Republican National Committee."
Which is bad enough, but the fundamental problem is that the Supreme Court is quite simply illegitimate—ever since the installation of Neil Gorsuch.*
43
Let me make clear that I do NOT support the President's actions. However, I think the Supreme Court will uphold them.
Congress created the web of laws that allow the Executive to declare an "emergency." And Congress retains the power to rescind emergencies created thereunder. A rescission would like other legislation, be subject to presidential veto. So in effect, Congress has created a scheme that will require a 2/3 vote in each house to undo a presidential emergency. The Republican-controlled Senate will not vote to override a Trump veto. That is unfortunate, but it is the system the laws created. The Supreme Court will likely reason that things are working as Congress intended.
Moreover, just a few months ago the Court upheld the "travel ban" by ignoring Trump's repeated public statements that it targeted Muslims and instead accepting the administration's claim that it was a matter of "national security." The Court was abject in its deference to the Executive on issues relating to protecting the country from external threat. So it is likely to be with the current pseudo-Emergency. It won't matter what Trump has tweeted or said in press conferences. So long as the "official" statements about the ban solemnly bloviate about threats to the homeland, the Court (with its solid Federalist Society-majority) will almost certainly go along.
This is yet another case of Trump shattering a norm that had kept the system working for decades. The law will not restrain him.
48
Indeed things may be working as Congress intended. I suppose the legal challenge will be if things are working as the Constitution intended.
10
The lawsuits that will come out of children separated at the border will make these Wall proceedings will be backed by international human rights laws. The pressure from who will regard us as a rouge state in a few years will bury the courts. Our corrupt system of privatized incarceration will then also have to answer to the global community who will act to condemn it.
8
Well put. Trump is rapidly undermining the rule of law after destroying the norms of civility. He is the chaos president brought to us by Putin.
231
@Martinprof1 Why by Putin?
The problem with Texas is too many Texans like Rafael Cruz, John Cornyn, Greg Abbott, Rick Perry and George W. Bush.
And too few Texans like Quanah Parker, Lyndon Johnson, Barbara Jordan, Beto O' Rourke and Will Hurd.
81
Mr. Chesney's op-ed is well thought out. What he appears to rely on, with respect to the position that there is no emergency, is more or less stray remarks from President Trump. That is what much of the argument was in the travel ban litigation, and as Chesney notes, the Trump administration won that. Stray remarks can be startling from any political figure - imagine AOC's stray remarks brought into a courtroom, if she ever became President. The travel ban litigation was a model for what the court's ought to consider, and ought to reject. The arguments have to be made around facts, not remarks. It's hard to make an argument that anything at the border "requires" the use of armed forces - clearly, all administrations have heretofore delegated that role to ICE and local authorities. Even the caravans of immigrants featured on the news are not armed, and offer no threat to militarily overwhelm even a few dozen police or ICE officers. Controlling spending is fundamental to Congress' role in our system, and right now, the President cannot get the House to agree to spend the money necessary. That's not an emergency; even a deferential court should find that.
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@Tom Wolpert
In any court of law, and after a "crime" is committed, remarks by a defendant would certainly be considered.
Why are Trump's post-emergency remarks any different?
9
Stray remarks? Trump was at the White House speaking to a gathering of reporters (the Fourth Estate). What part of that renders his recorded statements "stray remarks"? The utter foolishness of Trump's ravings do not make his words "stray remarks," however foolish the remarks may be.
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@Tom Wolpert
You make a good point re facts supporting legal argument. However, The "stray" remarks in the travel ban case were made during campaign appearances, prior to an election and prior to the executive action. Even I, an avowed opponent of Trumpism, rolled my eyes at the thought that elected officials shouldn't be allowed to update and modify their outlook without being held to a legal chain of motivation based on broad pronouncements made prior to taking office.
In this case, Trumps "I didn't have to.." clarification came after his emergency declaration and goes directly to intent. Certainly that should have some bearing in a court of law.
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So, we will have an illegitimate SCOTUS ruling on an issue built upon lies from a president who owes his position to an outdated and nonfunctional Electoral College.
I appreciate the professor's explanation of 'deference' but the whole thing is like building fairy castles in the air.
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@Dave Betts
Yes. That “deference” is now institutionalized. and morphs, before our disbelieving eyes, into obedience while the check on executive power that our courts and Congress were designed to exercise is scattered to the wind.
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@Dave Betts. No, we will have an illegitimate SCOTUS ruling on an issue built upon lies from a president who owes his position to a foreign power, aided and abetted by a corrupt and malevolent political party.
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@Ockham9
Yes, that too. But, there is no denying that political parties have captured the EC making it unable to fulfill its function as designed. Any valid EC would have rejected Trump's election. If not for the likes of Trump, who would the Founders have had in mind?
2
Interesting perspective, however Congress can (and likely should) intercede to clarify the rules around emergency declarations. In effect, this could obviate many of the concerns expressed in this article.
Whether or not Congress 'will' do this, is an entirely different question, of course...
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@Tom I agree but doubt that the Senate will act responsibly so long as McConnell continues ignores his duties as yields to Trump, the worst president ever.
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It seems to me all this could become a mute point if McConnell and the Senate republicans exercised their powers of over site. Reality is McConnell wont pull that trigger.
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@dccork1 No oversight may be because Mitch and Lindsey may well have something serious that makes it so that they can be compromised. I doubt it’s a moral issue but possibly they have financial dealings that they don’t want exposed. In any case the lack of oversight has allowed for great harm to our country and the office of the Presidency.
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@dccork1 Moot point. Moot moot moot moot moot.
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The Con Don could still veto, dccork1. That is how sick our system has become.