He said he would do it. With the government shutdown and congressional Democrats unwilling to let go of their anti-border security views, the president said he would declare a national emergency to get parts of the border wall built. Of course, Democrats flipped a lid. It would be a constitutional crisis if President Trump did so. It’s unconstitutional. It would make Trump a king. It could foster the beginning of the end of America. Yeah, so the Democratic freak-out was just a typical day. Yet, constitutional law professor Jonathan Turley added that Trump actually has the power to declare emergencies and that the Democratic response is somewhat interesting since they had zero problems, of course, with Obama circumventing the legislature on immigration, health care, and Libya (via The Hill):
Congress has refused the funds needed for the wall, so Trump is openly claiming the right to unilaterally order construction by declaring a national emergency. On its face, that order would undermine the core role of Congress in our system of checks and balances. I happen to agree that an emergency declaration to build the wall is unwise and unnecessary. However, the declaration is not unconstitutional. Schiff, now chairman of the House Intelligence Committee, insists that Trump “does not have the power to execute” this order because “if Harry Truman could not nationalize the steel industry during wartime, this president does not have the power to declare an emergency and build a multibillion dollar wall on the border.”
The problem is Trump does have that power because Congress gave it to him. Schiff is referring to the historic case of Youngstown Sheet and Tube Company versus Charles Sawyer, in which the Supreme Court rejected the use of inherent executive powers by President Truman to seize steel mills during a labor dispute. He wanted to claim a national security emergency if steel production halted during the Korean War. In a powerful check on executive authority, the Supreme Court rejected his rationale for unilateral action. The Supreme Court was correct. But that was in 1952.
More than two decades later, Congress expressly gave presidents the authority to declare such emergencies and act unilaterally. The 1976 National Emergencies Act gives presidents sweeping authority as well as allowance in federal regulations to declare an “immigration emergency” to deal with an “influx of aliens which either is of such magnitude or exhibits such other characteristics that effective administration of the immigration laws of the United States is beyond the existing capabilities” of immigration authorities “in the affected area or areas.”
Congress spent decades yielding authority to the executive branch. When it agreed with the president, such mighty authority was even celebrated. But now, consider the objections from Representative Joaquin Castro, chairman of the Congressional Hispanic Caucus. He has declared that it would be “profoundly inappropriate for the president of the United States to circumvent the legislative branch and single handedly, against the will of the American people and the American Congress, put up a wall.”
This is a curious statement from one of many lawmakers who supported Obama when he openly circumvented Congress on immigration reforms. Obama ordered agencies to stop enforcing some federal laws and used executive orders to do precisely what Congress refused to do. When Obama declared in a State of the Union address that he would circumvent Congress if it failed to approve his immigration reforms, Democrats cheered at the notion of their own circumvention, if not obsolescence.
Likewise, Castro and his colleagues supported Obama when he ordered the payment of billions out of the Treasury into ObamaCare, after being denied the funds by Congress. These same Democrats were largely silent when Obama attacked Libya without a declaration of war or legislative authorization. Obama funded the Libyan war out of money slushing around in the Pentagon, without a specific appropriation.
Now, Turley does say that Congress should act to curtail these widespread powers, noted the mess that would be upon the judicial system if Trump were to formally go forward with this decision, and added that the source of the funds could present legal challenges. Still, he adds that even if the courts enjoin construction, which is a possibility, it could give the president cover to re-open the government while his lawyers argue their case. We’ll see what happens. It’s more of a commentary of having a knee-jerk reaction to anything Trump does and declaring it unconstitutional. Turley notes the legions of morons who thought Trump’s executive order on immigration, erroneously called the Muslim ban, was unconstitutional. The Supreme Court settled that; it was indeed well within the president’s power to issue such an order. The same is true with this national emergency declaration, which seems like it’s going to happen. Trump said he would invoke this if there is no deal on border security, and that he has the right to issue it. Yeah, that’s true:
President Trump: "If we don't make a deal, I would say it would be very surprising to me that I would not declare a national emergency and just fund it through the various mechanisms..." pic.twitter.com/eXrkuTXAQ9— Axios (@axios) January 10, 2019