Sunday, January 06, 2019


CNN reports that the president is seriously considering a legally dubious way to end the wall impasse.
President Donald Trump is inclined to declare a national emergency to secure military funding for his long-promised southern border wall if talks between administration officials and top lawmakers from both parties continue to stall, a White House official told CNN on Saturday....

If a national emergency is declared to build the wall, the administration likely will face lawsuits questioning the legality of the move.
In The New York Times, Bruce Ackerman, a Yale law professor, methodically makes the case for why this won't work for Trump:
From the founding onward, the American constitutional tradition has profoundly opposed the president’s use of the military to enforce domestic law. A key provision, rooted in an 1878 statute and added to the law in 1956, declares that whoever “willfully uses any part of the Army or the Air Force” to execute a law domestically “shall be fined under this title or imprisoned not more than two years” — except when “expressly authorized by the Constitution or Act of Congress.”

Another provision, grounded in a statute from 1807 and added to the law in 1981, requires the secretary of defense to “ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)” must “not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”

In response to the Hurricane Katrina disaster in New Orleans, Congress created an express exception to the rules, and authorized the military to play a backup role in “major public emergencies.” But in 2008 Congress and President Bush repealed this sweeping exception.
It is even less plausible for the president to suspend these restrictions under the National Emergencies Act of 1976. From the Great Depression through the Cold War, presidents systematically abused emergency powers granted them by Congress in some 470 statutes, culminating in the Watergate fiasco. In response, the first section of the 1976 act terminated all existing emergencies and created a framework of checks and balances on the president’s arbitrary will.
But this is where it becomes clear that Ackerman is wrong -- Trump can declare an emergency to authorize construction of the wall. Here's what that "framework of checks and balances" consists of:
If President Trump declared an emergency, Section Five of the act gives the House of Representatives the right to repudiate it immediately...
Okay, that would work as intended. The Democratic House would vote to repudiate.
... then pass their resolution to the Senate — which is explicitly required to conduct a floor vote within 15 days. Since President Trump’s “emergency” declaration would be a direct response to his failure to convince Congress that national security requires his wall, it is hard to believe that a majority of the Senate, if forced to vote, would accept his show of contempt for their authority.
Is this a joke? Ackerman can't seriously believe that the Republican Senate would join the House in blocking Trump. Oh sure, Cory Gardner, looking ahead to his 2020 reelection campaign in increasingly blue (and 21.5% Hispanic) Colorado, might vote with Senate Democrats. Susan Collins might says she's Very Concerned. But she and every other Republican are all but certain to rubber-stamp whatever Trump has done. Remember, the new Senate is 53-47 Republican. The GOP can spare three votes -- and probably won't lose more than one or two. (Alleged maverick Mitt Romney is already on record as pro-wall.)

Maybe that's how this stalemate will end: Trump issues his declaration, then signs the bills to reopen the government. The declaration is approved in the Senate on a party-line vote, but it's tied up in the courts for the rest of the year and then into 2020. Trump gets a symbolic victory. Democrats get one too: They approve no wall funding. The wall can is kicked down the road the way the Dreamer can has been kicked down the road by the courts since the last battle over the wall. I don't think will ever give in, so this might be one of the less bad options.

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