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Fox News Judge: Pelosi Is Right About Trump’s ‘National Emergency’

This column originally appeared on Creators.

Earlier this week, House Speaker Nancy Pelosi told a group of supporters and journalists that in her view, gun violence is the real emergency. Such a statement, in the context in which she made it, should send shivers down the spines of all who believe in personal liberty protected by the Constitution.

Notwithstanding the terrifying analogy she made about gun violence — terrifying to those who believe in the individual right to keep and bear arms as articulated by the Second Amendment and interpreted and upheld by the Supreme Court — Pelosi wasn’t really speaking about guns. She was speaking about the presidency and the Constitution.

Here is the back story.

When President Donald Trump finally signed legislation two weeks ago to keep the federal government financed and open — legislation substantially similar to bills he had declined to sign in late 2018 and again in early 2019, bills that declined to give him the $5.7 billion he requested to build a wall at the southern border of the United States — he also issued a proclamation declaring a national emergency at the southern border.

He based his emergency proclamation upon anecdotal evidence that more folks were attempting to enter the United States from Mexico than the Border Patrol and the southwestern states’ safety nets could accommodate and that many of these would-be migrants were “bad people.” He produced no evidence to back up his emergency claims. When 58 former high-ranking federal national security folks — including a former Democratic secretary of state and a former Republican secretary of defense — directly repudiated the president’s stated basis for his emergency, the White House did not even respond.

As well, weeks before he signed the emergency proclamation, President Trump repeatedly offered that the threat of it was just a negotiating technique aimed at bringing House Democrats to the White House for a sit-down. And as he was announcing the proclamation itself, he boasted that he “didn’t need to do this.”

Trump’s proclamation directed the departments of Defense and Homeland Security to divert unspent funds in their budgets — funds directed to be spent on specified items by legislation passed by Congress and signed by former President Barack Obama and by President Trump himself but not yet spent — to build a 55-mile stretch of what he says will be a 1,000-mile wall.

As I have written in this column and articulated on Fox News Channel, such executive action is unlawful, as it constitutes a presidential intrusion into an area of federal behavior — spending money — that the Constitution reposes exclusively in the Congress. In the famous Steel Seizure Case in 1952, when President Harry Truman ordered the employment of nonunion workers at government expense to run strike-closed steel mills after Congress declined to do so, the Supreme Court blocked him from doing just what President Trump is attempting to do — spending money in defiance of Congress.

A generation after the Supreme Court rebuked Truman — during the presidency of Gerald Ford — Congress did grant the president the power to declare emergencies, but these declarations cannot be contrary to the Constitution, and they cannot give the president more lawful authority than the Constitution gives him.

Though the 1976 statute interestingly fails to define just what constitutes a presidential emergency, the courts have concluded that it consists of the onset of a sudden and unanticipated event that demands government action to preserve life, liberty or property — an event the ordinary levers of governmental power are insufficient to address. But it does not — and constitutionally cannot — authorize the president to spend money that Congress has expressly declined to spend.

Now, back to Speaker Pelosi and her comment about guns. Her constitutional argument (and I agree with her, which rarely happens) is that not only may the president not spend contrary to congressional wishes but also he cannot claim that his own declaration of a national emergency gives him another source for presidential power — in this case, the ability to condemn private property and build a wall on it.

All presidential powers come only from the Constitution — and from no other source. Were that not the case, were a president able to characterize any state of affairs as an emergency and thereby give to himself the lawful power to address it extra-constitutionally, that would do irreparable violence to the Constitution and would effectively transform the president into a prince.

Under President Trump’s theory of emergency powers, a President Pelosi could declare that gun violence is an emergency and then confiscate handguns. Or a President Cory Booker could declare that health care is an emergency and then spend unauthorized funds purchasing health insurance for those who lack it. Or a President John Bolton could declare that North Korea and Iran pose emergency threats to Los Angeles and New York, respectively, and then bomb the threatening countries back into the Stone Age.

You can see the wisdom of Pelosi’s slippery-slope fear. If President Trump can get away with this, there will be no stopping his successors — no matter who they are.

The Constitution’s separation of powers — Congress writes the laws, the president enforces them, the judiciary says what they mean; Congress declares war, the president wages war, the judiciary interprets the legal effects of war on domestic law — was not established to fortify any of the three branches. It was crafted to keep each of those branches out of the business of the other two — and thereby limit the reach of each branch and thus keep federal power separated and diffused.

As House Prepares To Void ‘Emergency,’ Trump Pleads For Senate Support

As several GOP senators abandon him, Trump took to Twitter on Monday morning in a humiliating effort to convince Senate Republicans to support his fake national emergency declaration — as the House prepares to vote on Tuesday to void the declaration.

Last Friday, Sen. Lisa Murkowski (R-AK) announced she would support a Democratic-led effort to rebuke Trump’s latest effort to pretend the rules don’t apply to him. “I want to make sure that the resolution of disapproval is exactly what I think it is, because if it is as I understand it to be, I will likely be supporting the resolution to disapprove of the action,” Murkowski told the AP.

She joins Sens. Susan Collins (R-ME) and Marco Rubio (R-FL), who have expressed a desire to reign in Trump’s unconstitutional power grab.

Sensing vulnerability, Trump made a desperate plea.

“I hope our great Republican Senators don’t get led down the path of weak and ineffective Border Security,” Trump said. “Without strong Borders, we don’t have a Country — and the voters are on board with us. Be strong and smart, don’t fall into the Democrats ‘trap’ of Open Borders and Crime!”

The lie-riddled pleas come as there is mounting pressure on Republicans to overturn the national emergency declaration. Public polling shows Americans are overwhelming opposed to both a wall along the border and Trump’s fake national emergency declaration.

Trump’s efforts “will undermine U.S. national security and foreign policy interests,” a group of 58 former security officials, including high-ranking officials in both Democratic and Republican administrations, recently wrote. Further, a group of almost two dozen former Republican members of Congress sent an open letter to current GOP lawmakers pleading with them to support the resolution to revoke the national emergency.

Trump only declared a national emergency — to steal funding meant for other priorities — after Congress repeatedly, and pointedly, rejected his funding request for $5.7 billion to build a wall along the U.S.-Mexico border.

On Tuesday, the House will vote on a measure to overturn Trump’s fake national emergency. The measure is expected to pass, at which point the Senate will be forced to hold a vote on it.

In addition to those mentioned above, several other Republicans expressed concerns about Trump’s power grab. The AP noted there are at least 11 Republican senators to keep an eye on in the coming weeks, more than enough to create a majority in the Senate rejecting Trump’s declaration.

Trump is desperate to keep his caucus in line so he won’t face an embarrassing rebuke from Congress.

In the end, Republicans in the Senate will have a very simple choice: Succumb to Trump’s intimidation tactics, or hold true to their oath to uphold the Constitution.

Published with permission of The American Independent.

IMAGE: Photo of Senator Lisa Murkoswki (R-AK) by Lingjing Bao, July 26, 2012
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Multiple Lawsuits Filed Against Trump’s ‘National Emergency’ Gambit

UPDATE: 

A coalition of 16 states filed suit on President’s Day to block Trump’s plan to build a border wall without Congressional authorization, seeking to enjoin him from seizing funds under the guise of a “national emergency,” which they argue is unconstitutional.

Brought by a group of Democratic governors — plus the Republican governor of Maryland — the filing asks the U.S. District Court for the Northern District of California to issue a preliminary injunction against the president that would bar him \ from acting on his emergency declaration before the case is decided.

Trump is already facing at least two lawsuits over his unnecessary wall, and there are more on the way.

Even before he officially declared a national emergency in an unhinged rant, it was clear that there were going to be lawsuits. Yes, plural.

And it isn’t like he didn’t know he’d get sued. He said so Friday, when he announced the emergency. He also said that he “didn’t need to do this,” a statement that somewhat undercut his assertion there was an emergency.

Now, there are two lawsuits and the promise of at least one more, and that doesn’t include the fact that the House Judiciary Committee has already said they are going to investigate as well.

The first two lawsuits came from public interest groups. On Friday — the same day the “emergency” was announced — Citizens for Responsibility and Ethics in Washington (CREW) sued the Department of Justice (DOJ). Their lawsuit alleges that the DOJ’s Office of Legal Counsel (OLC) didn’t provide any documents that explain the legal authority Trump has to make the national emergency declaration.

CREW had requested those documents from DOJ back in early January and also requested an expedited review given that everyone has a significant interest in knowing, sooner rather than later, the underlying legal basis for Trump declaring a national emergency. The OLC denied expedited review and told CREW that they wouldn’t even make the normal deadline of 20 working days. So, CREW sued to get those documents.

The American people shouldn’t be in the dark about a matter as important as this. CREW’s lawsuit seeks to shed some light by asking the court to order the DOJ to provide those documents, including legal opinions, immediately.

Friday’s other lawsuit was filed by Public Citizen on behalf of Texas landowners and an environmental group. The landowners are people who have been informed that the wall will be built on their property.

Taking their property to build the wall is theoretically permissible under the Takings Clause of the Fifth Amendment, which allows the government to exercise eminent domain and take private property for public use. However, conservatives are generally virulently opposed to such a thing.

Trump likes the idea just fine though.

Public Citizen’s lawsuit isn’t just about the taking of land. It also challenges the idea that there is a national emergency at all. Migration at the southern border is not an unforeseen emergency, for example. And most important of all: “[A] disagreement between the President and Congress about how to spend money does not constitute an emergency authorizing unilateral executive action.”

And there’s another lawsuit getting teed up. California announced on Friday that they’re planning on suing. It looks like several other states — including Hawaii, Minnesota, New Mexico, and Oregon — will join the suit.

Trump may be confident that he’ll find a sympathetic ear at the Supreme Court that he’s already stacked with two extremely conservative judges, Justice Neil Gorsuch and Justice Brett Kavanaugh. With Justices Clarence Thomas and Samuel Alito, along with Chief Justice John Roberts, there are, regrettably, five votes to back Trump’s most absurd and vicious impulses. That’s exactly what they did in the travel ban case.

Here’s hoping that Chief Justice John Roberts’ desire to maintain the independence of the judicial branch comes through and Trump eventually gets told he can’t use a national emergency to get his pointless wall.

Published with permission of The American Independent.

Judiciary Committee Launches Probe Of Trump’s ‘Emergency’

That was fast.

Democrats on the House Judiciary Committee, led by Chairman Jerry Nadler (D-NY), announced that they’re launching an “immediate investigation” into the national emergency declaration Trump made on Friday, which was intended to allow him to go over Congress’ head and raid money from other areas of the federal government to fund his needless border wall.

“We believe your declaration of an emergency shows a reckless disregard for the separation of powers and your own responsibilities under our constitutional system,” Democrats on the House Judiciary Committee wrote in a letter to Trump on Friday afternoon.

In the letter, committee members laid out their position for why a national emergency declaration is not only unwarranted but also illegal, based in part on the “series of misleading statements” Trump made during his bizarre and at times incoherent announcement on Friday.

“The fact that you would use an emergency declaration only after years of failing to obtain congressional approval for construction of your wall further indicates that there is no true emergency at present,” committee members wrote in the letter.

The Judiciary Committee Democrats presented eight questions they are demanding that the White House and Department of Justice answer as part of this investigation.

These questions include whether the Trump administration sought the advice of the Office of Legal Counsel in determining whether it could issue an emergency declaration, and if so what advice the OLC gave.

The Democrats also want to see the “legal basis” that there really is an “emergency” at the southern border, as well as any communications the White House may have had with other administration officials regarding areas that Trump could draw funding from for the wall.

Given how fast Democrats announced their probe into this needless emergency declaration, it’s no wonder Trump has been so scared of governing with a Democratic-led House.

Published with permission of The American Independent.