Thursday, February 14, 2019
Gerard N. Magliocca
With the President on the brink of declaring a national emergency, let us briefly review how we got here. In the National Emergencies Act of 1976, Congress provided that such a declaration could be rendered null and void by a joint resolution of Congress. Subsequently, the statute was amended to say that such a resolution must be signed by the President or enacted after a congressional override. That makes a BIG difference. If the original standard were in place, there is a good chance that the President would not be doing this now and, if he did, would be repudiated by Congress.
I would much, much prefer that they had simply ruled that Congress can't delegate. There's no provision in the Constitution granting Congress the power to hand out bits of its power to other branches and agencies, and thus they can't. Permitting delegation undercuts the separation of powers, BAD idea.
But having made that mistake, the rest of the ruling is right. The Constitution doesn't contemplate demi-laws and quasi statutes. It's legislation or nothing.
It isn't the Court's job to imagineer a workable government structure into being. The Constitution hands the Court a government structure, and the Court's job is to enforce it. Every last bit of it, and nothing that isn't there, and whether the Court approves of it doesn't enter into the matter. Formal interpretation of the Constitution is the Court's job. Do it.
And the Presentment Clause is part of that, even if you or Congress finds it inconvenient.
If Congress doesn't like that, they can get off their duffs and repeal the Emergency Act, (Subject, again, to the Presentment Clause.) or send an amendment to the states to give themselves the power to delegate on their own terms.
Until they do that, here we are, and properly so.
It passes laws. It is not delegating illegimately as a rule. Actual governing, and this occurred in some ways from the start, includes some executive discretion.
As to the opinion, it very well might be right, but Justice White's dissent provided some evidence that it is far from a slam dunk.
If the original standard were in place, there is a good chance that the President would not be doing this now and, if he did, would be repudiated by Congress.
Is there an exception to the filibuster here?
It would certainly be entertaining to see an emergency cancellation resolution being filibustered in the Senate by Republicans.
The open borders minority among Republicans prevailed in the case of this legislation, because Trump, already having caved once on a shutdown, wasn't about to risk another. But that factor doesn't apply to a resolution ending a state of emergency; The Republicans who voted for it, and particularly voted to try to override Trump's veto of it, would be very exposed. There would be no hiding which side of this fight they were on, and no side issues to hide behind. Their constituents would know they were open border fanatics, no matter how much hand waving they engaged in.
So I don't see much chance of an override being attempted; The Republican Senators who were interested in retiring have already left, the remaining ones want to keep their jobs.
Brett: It would certainly be entertaining to see an emergency cancellation resolution being filibustered in the Senate by Republicans.
McConnell would likely protect the open borders Republicans by sitting on any resolution the Democrat House sent over just like he did with the Democrat appropriations bills during the shutdown, and piously calling on the White House and House Democrats to work this out as if the Senate did not exist.
I am not at all sure the Democrat House wants to have this vote either. About 35 of their 40 new seats were won by razor thin margins with the help of the usual midterm out party turnout advantage in districts Trump won in 2016.
I suspect the Democrats will instead bring suit before a cherry picked Democrat appointed district court judge who will ignore their lack of standing to issue a nationwide injuction against the spending.
Ain't our democracy grand?
"McConnell would likely protect the open borders Republicans by sitting on any resolution the Democrat House sent over"
Add this to my list of proposed amendments: Every member of Congress should be entitled to introduce one bill per session which is guaranteed an up/down roll call vote in both chambers, without amendment.
"I suspect the Democrats will instead bring suit before a cherry picked Democrat appointed district court judge who will ignore their lack of standing to issue a nationwide injuction against the spending."
That's my expectation, too, and I expect that judge to be slapped down so hard people are remembering it for decades. Not just because this is quite close to the core of Presidential responsibility, but also because I suspect the Court is getting tired of this sort of TrumpLaw.
As I understand it, the resolution overriding the emergency declaration cannot be filibustered.
I expect Senate Rs will cave and refuse to pass it. Bad faith piled on bad faith.
Bad faith to whom?
Red state voters support a border fence (which is why the Democrat media polls adults, seven percent of whom are non-citizens themselves).
The open borders Republicans react to (1) contributions from businesses to employ cheap foreign labor and/or (2) the belief that extending amnesty to illegal aliens will win them future voters from that group.
There are some Republican senators now talking about how they oppose the move but especially since McConnell supports it, unclear if a resolution would pass. Plus, don't really know what effect it would have. Any substantive effect would be open to a veto. There aren't the votes for an override. Anyway, Republicans as a whole want this to go away & figure it will be tied up in the courts. On some level, that is realistic politics that isn't novel or on some level something to be that scornful about on some level.
I don't think it's likely to be tied up in the courts for very long. Trump has explicit statutory authorization here, the law assigns him the decision as to whether there's an emergency or not, it's a decision that'd right at the core of Presidential authority, national defense.
And I think the Court is getting sick and tired of fielding Trumplaw cases, and are ready for a major smackdown.
The Dems will bring suit in the Ninth Circuit to gain the injunction and survive the first round of appeals. The question is whether the Supremes will take the case immediately after the Ninth upholds the temporary injunction or allow the Dems to delay at trial for a couple years.
Immediately, I think. And the President can at least request a direct appeal to the Supreme court, and in the case of an emergency declaration I think he'd get it, because the alternative is essentially the Supreme court preemptively deciding that there's no emergency...
Brett's trust in federal power and legal analysis aside, I think the various liberal/conservative/libertarian concerns with the application of the law here which in practice can raise various property, federalism and maybe even Native American law issues make it far from clear-cut.
Roberts put off deciding the abortion question, the Court is taking a while to address the census question and so on. The travel ban case was no rush job & the ruling left open further as applied challenges. It is unclear he is just dying to rush this case.
More likely, it will be left to develop as lawsuits are, and while they do other stuff, maybe it will be on the docket in 2020. Meanwhile, various other developments will occur politically that might make it all somewhat moot.
What is special about employing the National Emergency Act here? The NEA grants POTUS very broad authority to define a national emergency and POTUSes have done so about fifty times in the past.
I do not see the libertarian "apply the Constitution as written" argument here. Article I grants Congress the power to appropriate money, but nowhere states it must designate how the money is to be spent. Congress can either appropriate the money for POTUS to spend at his discretion, designate a line item on which to spend the money or a combination of both as envisioned under the NEA.
Freedom-espousing Republicans excited about the waste of government funds and a massive use of eminent domain. I thought that caucus were interested in civil liberties?
If a GOP run Congress wasn't interested in using the power of the purse for two years, how is this an emergency? How does someone defend the use of an act with the word "emergency" in it in the absence of an actual emergency? Beyond that, defend the theft of taxpayers' money and property for a pointless exercise of hubris. Shame on these people who claim to represent Americans.
Foreign citizens have no "civil liberty" to invade our country.
Whether the last largely do-nothing GOP Congress was willing to fund a defense of the border does not mean the border does not need defending.
Employing a law of Congress permitting limited reallocation of previously appropriated funds is not a "theft of taxpayer money." Indeed, Trump appears to be using money meant for this general purpose - that previously appropriated for drug smuggling prevention
Extending a border fence previously erected with bipartisan support under governments of both parties is hardly a "pointless exercise of hubris."
The legislation passed extends fencing, so yes, it is a pointless tantrum for no purpose. You fail to defend the expansive use of eminent domain--not surprising given your historical opposition to the idea.
The taxpayers speak about appropriations through the House. They have spoken.
Tweedle-dumb and Tweedle-dumber seem to be imagining Trump sitting on his imaginary Mexico border wall on his call declaring a "national emergency" based this variation on Lewis Carroll in questioning the role of SCOTUS:
“When I use a word,” Trumpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Speaker Pelosi, “whether you can make words mean so many different things.” “The question is,” said Trumpty Dumpty, “which is to be master—that's all.”
A principled libertarian [oxymoronic?] would recognize this as authoritarianism.
SCOTUS accepted the census case for oral argument -- even given the district court ruling -- because the clock to submitting the census form is running out.
Opposition to the use of the emergency powers can be found over at Volokh Conspiracy from a conservative/libertarian p.o.v. & flags the issues involved:
As noted there, the "exact plans" and terms of any executive order would be helpful here. Anyway, as to the original point of the post, I do wonder if modern developments warrants some sort of constitutional amendment to provide clarity. The value of an amendment to end the natural born citizenship requirement for presidents & other things occasionally arise. It might be useful to have one in this context. A legislative veto very well might be unconstitutional (but see the dissent in Chadha & Powell's more narrow concurrence) and good policy.
Prof_Scott said...The legislation passed extends fencing, so yes, it is a pointless tantrum for no purpose.
No purpose apart from maybe extending the border fence four or five times the distance of the budget deal with none of the poison pill limits the Dems slipped in the appropriation?
You fail to defend the expansive use of eminent domain--not surprising given your historical opposition to the idea.
This is precisely the kind of public use for which eminent domain is designed.
The taxpayers speak about appropriations through the House. They have spoken.
Did you say that when the GOP controlled the House and the Dems the White House and Senate just a few years back? There is no appropriation without all three.
The Dems were free to demand a reversal of their NEA legislation as part of the budget deal. I suspect the expectation Trump would declare a national emergency was actually part of the deal.
Joe: Opposition to the use of the emergency powers can be found over at Volokh Conspiracy from a conservative/libertarian p.o.v. & flags the issues involved.
Let's discuss Professor Somin's objections:
"Some point to 10 U.S.C. 2808 and 33 U.S.C. 2293 as possible justifications. But Section 2808 states that, during a "national emergency" that "requires the use of the armed forces"...Section 2293 also only applies to a war or emergency that "requires or may require use of the armed forces...In fact, as Yale Law School professor Bruce Ackerman explains, longstanding laws bar the use of troops for domestic law enforcement (including enforcing immigration law)."
The primary duty of the military is to provide border security. As CiC, POTUS may use the military to shut down the borders to stop foreign invaders. Multiple POTUSes have mobilized the Guard provide border security against illegal immigration and smuggling, including installing physical barriers.
The fact that Posse Comitatus prohibits the military from prosecuting illegal immigrants for violations of immigration law does not mean they cannot fulfill this mission.
"The Supreme Court has long held that the use of eminent domain must be expressly authorized by law. Delaware, L. & W. R. Co. v. Town of Morristown, 276 U.S. 182 (1928). No emergency law expressly permit the use of eminent domain for border walls not otherwise authorized by Congress."
The cited Delaware decision involves the scope of an agreement between the property owner and a municipality, which is not analogous to the statutes at issue. POTUSes have frequently used the National Emergencies Act to seize the property of various foreign nationals. Thus, Trump using the NEA to perform the less invasive function of purchasing property through eminent domain would appear to be well within his powers.
To the extent a court would disagree, Trump could use the fence appropriation in the FY 2019 budget to purchase the property and the funds transferred under the NEA to build the border fence.
SPAM at 3:53 PM makes this point:
"POTUSes have frequently used the National Emergencies Act to seize the property of various foreign nationals."
Maybe the now bearded Sen. Cruz had a point on making El Chapo pay for the wall.
At 3:06 PM SPAM concluded with this:
"The Dems were free to demand a reversal of their NEA legislation as part of the budget deal. I suspect the expectation Trump would declare a national emergency was actually part of the deal."
Sure, and the Dems were free to demand a reversal of the Repubs 2017 Tax/Jobs Act as part of the budget deal. What SPAM suspects is not specified in the legislation passed by Congress. Now what method does SPAM espouse for interpreting legislation?
Those who wail and gnash their teeth so much about Congressional 'delegation' to the Executive now cheer an example of it on steroids.
Those who bray about the sanctity of property rights now cheer a national eminent domain project.
Those who base so much on foreigners having less rights than native citizens now conflate the two (if it's ok to seize foreign assets surely it's ok to take citizen's property).
Of course, all these head scratching seeming contradictions are the kind of things that suggest to so many people that the overriding 'principle' of much modern conservatism is simply about keeping 'them' out (our of the country, out of power, etc.,). Everything else is lipstick on an elephant.
Mr DePalma, it will cost 20 billion dollars and take a decade or more to build the wall that Trump crows about. Do you understand that those 20 billion dollars do not come from wise investments or a lovely trust fund or the President's tax refund?
Spending should have a point. And emergency spending should have an emergency. Building a wall when immigration numbers are among the lowest in years and the efficacy of that structure against the stated goal of reducing crime is not a response to a crisis. It is a response to a well-designed chant, and the frustrations of an unpopular President showing division for the purposes of division.
You know better than this. You may have forgotten your libertarian roots, but I have not. Look at the data: is there a crisis? If it were your backyard, would you give up your home and property for it? I think you wouldn't. I think you'd fight like a red-blooded American to keep what's yours. I wish your side would understand how deeply that patriotic individualism goes on all sides of the political spectrum.
Talk to me about public good. If this demands money RIGHT NOW, why not simply put the brakes on the famous tax cuts for a month or two?
It doesn't matter to the one driving this. This is a campaign stunt--a remedy for his flagging polls and his pending fate at the hands of Republican lawyers a bit more principled in their approach to the rule of law.
Spare me the born again constitutionalist pose.
Article I grants Congress the power to appropriate money, but it does not mandate the legislature designate on what the POTUS must spend the money. Congress can give POTUS a pot of money to spend on what he will, provide a line item designating exactly how to spend the money or designate anything in between like limited ability to shuffle around various pots of money granted by the National Emergency Act. So far appropriations goes, Congress has delegated nothing to Trump.
The Constitution specifically recognizes the government has the power of eminent domain so long as it is using the power for a public purpose and provides fair compensation to the property owner.
Prof Scott: Mr DePalma, it will cost 20 billion dollars and take a decade or more to build the wall...Spending should have a point. And emergency spending should have an emergency.
OK, lets talk about the economics of importing low skilled foreign citizens into a welfare state:
(1) According to the census , roughly 2/3 of non-citizens are dependents to some extent on the welfare state and they are not leaving the system.
(2) When you throw in other costs such as education, illegal immigration alone costs the nation roughly $54 billion a year.
(3) This problem will only get worse under current trends, foreign-born as a percentage of total population is reaching levels unseen for a century, back when we did not offer a welfare state.
(4) Immigration numbers are only down when compared with the insane numbers during the Obama administration. The change in the nature of the immigration from single men to families have completely overwhelmed our immigration system.
Yes, we have an emergency and a complete border fence would cost a fraction of one year's burden on our nation.
Is a border fence the most cost effective method of controlling immigration? No.
We could solve the problem by drying up demand drawing immigration.
(1) Make it a misdemeanor crime with a jail penalty for any person or entity to hire an illegal alien without performing a background check one e-Verify. Make the jail mandatory starting with the second offense.
(2) Limit the welfare state to US citizens and scrub the current rolls for citizenship.
(3) Anyone who illegally entered the country is prohibited from being granted asylum and citizenship.
(4) Asylum is limited to named totalitarian states persecuting their citizens designated by Congress or natural disasters designated by POTUS. All applicants must present themselves at an embassy or port of entry. None may enter the US until granted asylum.
There is no chance in hell the Democrats and open border Republicans will agree with this, so a border wall is the least worst option after the current system.
Bart, you're a bullshit spewing racist asshole. There's no emergency. Trump's clubs were hiring undocumented immigrants until just a few weeks ago. The wall is nothing but a dog whistle for racist scum like you. And I guarantee that this isn't going to end well for you and your fellow racist assholes.
BB, your siesta since Nov. 8, 2016 is finally over and you've not lost a step. We need your 2020 vision to combat the anarcho-libertarians.Post a Comment