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Senate Rejects Trump Emergency Declaration — As It Must

“Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.” — Chief Justice Charles Evans Hughes (1862-1948)

On Thursday, the United States Senate took a historic vote known as a negation, a statutory procedure whereby Congress nullifies an act of the president. The negation vote is authorized by the National Emergencies Act of 1976, which was written to permit the president to streamline government during an unforeseen crisis.

The act itself fails to define what constitutes an emergency, but the courts — as is their job where a law is ambiguous — have generally defined an emergency as a sudden and imminent threat to life, liberty and property that cannot be addressed by the exercise of ordinary government powers.

When Hurricane Katrina devastated New Orleans, President George W. Bush declared a state of emergency. That declaration enabled him to move government assets and materials to suffering folks without regard to environmental laws, public bidding laws or even local speed limits. But it did not permit him to spend money that Congress had not authorized, nor could he as president exercise any powers that the Constitution delegated to Congress.

President Donald Trump, in his recent declaration of national emergency at the U.S.-Mexico border, ordered the departments of Defense and Homeland Security to spend unused but unauthorized money in their budgets on building a 55-mile steel barrier — “a big, beautiful wall” — along a portion of that border. Because Congress has expressly and explicitly declined to authorize the funds for the construction of such a barrier, we have a constitutional conflict on our hands.

The conflict is more acute than just a difference of opinion. It is an issue for Trump of fidelity to his oath of office. Several of the statutes that Trump will be violating by spending unauthorized money on the border barrier he himself signed into law. In the presidential oath, the president agrees to enforce federal laws “faithfully” — whether he agrees with them or not.

Can the Congress amend the Constitution? Can it cede to the president powers that the Constitution has delegated to Congress? Every time the courts have addressed these questions, they have answered with a resounding NO.

The issue of whether the status of matters at the southern border rises to the level of emergency will soon be decided by a federal court. It will rule if in the present situation there is an A) sudden, B) unanticipated and C) true threat to life, liberty or property that D) cannot be addressed by the ordinary employment of government assets. If a court decides that any of the A through D factors is not present, that is the end of the inquiry; the court will enjoin the enforcement of Trump’s declaration because it does not fit within the definition of an emergency.

But if a court agrees with the president — that the months-long mass movement of migrants from Mexico to Texas is an emergency that cannot be addressed by ordinary means — it must then address the constitutional issues. Here, the law is clear.

Under the Constitution, only Congress gets to decide how money from the federal treasury shall be spent. When the president has asked for funds — here, to condemn private property and build the barrier — and Congress has said no, he cannot legally go out and spend the funds anyway. Some have argued that Congress has given away some of its powers to appropriate funds to the president during prior emergencies. And some have argued that the existence of an emergency gives new powers to the president. Such arguments betray gross ignorance of the Constitution.

This amendment by consent is at the core of President Trump’s argument. He and his Republican colleagues in Congress have argued that Congress has given all presidents since 1976 new powers in emergencies. This is not possible under our system of constitutional government, even if all concerned did look the other way with a wink and a nod. Presidential power comes only from the Constitution, not from Congress.

In an ironic sense, those of us who believe that the Constitution means what it says are grateful to President Trump for teeing up this issue, expecting a judicial injunction. But no member of Congress can be faithful to her or his oath of office and still support Trump’s view of extraconstitutional powers.

The Senate now follows the House in voting to prevent President Trump from getting away with this. The price of him doing so far exceeds the construction costs of a border barrier. When a president exercises extraconstitutional power, he violates his oath to be faithful to the Constitution and he strikes at the core principle of the separation of powers. Such a strike irreparably undermines the basic protection of freedom in America itself.

In this case, the freedom being undermined is the right of the people to a government that obeys its own laws. Emergency does not create presidential power; only the Constitution does.

IMAGE: President Donald Trump leaves the President’s Room of the Senate at the Capitol after he formally signed his cabinet nominations into law, in Washington, D.C., January 20, 2017. REUTERS/J. Scott Applewhite/Pool

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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