White House press secretary Sarah Sanders told reporter John Gizzi that President Donald Trump “is going to do what it takes” to get the border Wall, leaving the national emergency option on the table. (READ: There Are Already 31 Active National Emergencies; Obama Declared 13 National Emergencies).
“I don’t think anybody in the country can argue the fact that there is a real problem at our border. It needs to be fixed and the president is going to do what it takes to address it,” Sanders told Gizzi prior to the deployment of several thousand more American troops to the southern border Tuesday.
President Trump’s position is further strengthened by the fact that he already signed an executive order for the border Wall, so all he’s really doing by allowing this to drag on is emboldening the mainstream media to try to flip establishment Republicans away from him by pretending the national emergency option is a big deal. Hopefully Jared Kushner doesn’t manage to pass any bills before the February 15 Wall deadline.
Texas is covered by the Fifth Circuit of federal courts. Appeals from federal courts in Texas go to the generally conservative U.S. Court of Appeals for the Fifth Circuit which sits mainlyin New Orleans.
The Southern international borders with California, Arizona, and New Mexico are within the Ninth Circuit. Appeals go to the U.S. Court of Appeals for the Ninth Circuit in San Francisco, which has been widely criticized (including by Trump) as being out of the judicial mainstream and sharply more leftist than the rest of the country.
Lawsuits are predicted and even threatened “within minutes” to try to block President Donald Trump if he declares a national emergency to re-purpose federal funds to fund construction of a border wall or barrier.
A plaintiff must have “standing” — a personal interest in the litigation — not just a policy preference. Unlike recent examples, few people will have standing to challenge a border wall by emergency declaration. Neither taxpayers nor Members of Congress will have standing. But immigration advocates will try. They will flood the courts with challenges.
As an attorney experienced working with public policy litigation, here is a practical plan for how Trump can keep the legal dispute entirely within the Fifth Circuit and out of the Ninth Circuit.
First, President Trump should get on Air Force One and fly to Texas to meet with Republicans opposed to illegal immigration Governor Greg Abbott, Senator Ted Cruz, and leaders of the Texas legislature.
Second, Governor Abbott should formally request the Texas legislature to issue an application for the federal government to defend the Texas border with Mexico. Section 4, Article 4 of the United States Constitution commands the United States Government – unconditionally – as follows:
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
Texas, through its legislature, should make an explicit demand — as it is entitled to do — for the U.S. Government to defend the international borders affecting Texas. Basically, the U.S. Constitution was a bargain. The States submitted authority to the national government. But in return the U.S. Government promised to secure the borders for the States. The U.S. Government is seriously in breach of its obligations and has violated that quasi-‘contract.’
Note that unlike almost all other aspects of the Constitution, here the U.S. Constitution requires that Washington “shall” defend the States. Therefore, what court has power to question the Commander in Chief in carrying out not just a power but a command from the U.S. Constitution?
Third, Trump should then declare a national emergency under 50 U.S.C. 1621. Trump’s legal team needs to burn the midnight oil to carefully explain the grounds, lay a foundation, and present the situation properly. Texas invoking Article 4, Section 4, would make that declaration nearly bullet proof.
Fourth, Trump should consider that this is not a mutually exclusive “either/or” situation. Trump can declare a national emergency today while still negotiating with Congress and while pursuing funds confiscated from drug smugglers at the border.
Fifth, the declaration is separate from actually reprogramming federal funds. Therefore, Trump should start building the border wall only in Texas. (Where other money is available, construction can proceed under different authority.)
Remember that Congress has already authorized — even mandated — the construction of a border wall. In 2006, Congress enacted and President George W. Bush signed into law, the Secure Fence Act of 2006. The problem is that Congress never fully funded the Secure Fence Act of 2006. Building a barrier is the law. Building the wall is mandatory. Funding it is the only challenge.
Trump can use the declaration of an emergency to activate 33 U.S. Code § 2293 “Reprogramming during national emergencies” and redirect funds from other areas of the government to construction of the border wall. Other possible statutes include 10 U.S. Code §2803 and 10 U.S. Code §2808.
Sixth, Trump as an experienced builder should break up the process into its separate parts. Many parts of the project can be funded out of existing federal programs without any special funding.
Before even using reprogrammed funds, Trump should immediately order the Defense Mapping Agency, the National Imagery and Mapping Agency, and the U.S. Geological Survey to compile a comprehensive analysis and study of every mile of the border including LANDSAT satellite imagery. The Republican U.S. Senate should order the Congressional Research Service to compile a comprehensive analysis of the entire border.
Trump as Commander in Chief should order the military to the border and order them to clear and prepare a strip of land along the Texas border, maybe 1,000 to 1,500 feet wide, and build an access road anywhere it is not present. These are actions that are appropriate for a military deployment and for management of the border, regardless of whether a border wall is the end result or not. The military as part of their deployment should move in mobile trailers for housing, equipment to manage the land, etc. like earth-moving equipment, freight trucks, etc.
Seventh, Trump should order an easement along the international border taken by eminent domain — but for now only in Texas. In the past, passive resistance by the bureaucracy tried to take entire ranches by eminent domain, thus driving up the price. These “designed to fail” approaches must stop. The U.S. Government should take only an easement along the border maybe 1000 feet wide, not entire ranches. The cable company would take an easement, not someone’s entire land.
In fact, the State of Texas should take the easement along the international border by eminent domain. That would keep any disputes within Texas courts, not in the Ninth Circuit.
The government can take an easement immediately and then fight later over how much money should be paid to the landowner. Remember that this was the legal holding of the over-the-top, controversial U.S. Supreme Court precedent Kelo v. City of New London, Connecticut, 545 U.S. 469, 125 S. Ct. 2655; 162 L. Ed. 2d 439 (2005). Kelo ruled that it is not even necessary to show a “public purpose” for eminent domain. Legal challenges will not stop construction, even it takes years to reach agreement on the compensation payable to landowners.
Eighth, Trump should be careful not to take funds away from a purpose that will create a plaintiff. There has been talk of taking hurricane disaster relief funds earmarked for Puerto Rico that have not been put to use. That would give Puerto Rico standing to file a lawsuit against Trump’s actions. Puerto Rico is in the First Circuit. There is also talk of taking hurricane disaster funds meant for Texas. That would keep the dispute in the Fifth Circuit. Eventually, of course, funds will be made available. Congress would have to appropriate supplemental funds to fully fund any legitimate disaster relief or reconstruction needs.
Trump’s legal team needs to carefully prepare any such initiative before hitting “send.” Each individual component of the construction should be considered separately — not as a single project — so that different pockets of money can be re-purposed from different sources.
When funds are reprogrammed to actions very similar to the original purpose of the funds, the case for reprogramming is stronger and may not even require any emergency. Again, many of these actions are perfectly valid and entirely necessary merely to maintain the country’s international border even without a plan to build a border wall.
Trump’s legal team needs to carefully scrutinize each source of funds being re-purposed and each action being taken to avoid offering any room for plaintiffs to claim they have standing — that they are individually, personally, tangibly harmed. Being affected in a positive way doesn’t count for standing. Actions whose benefits outweigh negative impacts may (the courts have been inconsistent) defeat standing. For example, a landowner with a border wall along their property would have increased property values by not having trespassers trampling across their land, leaving trash behind, and scaring their family in their bedrooms at night. However, if funds are taken away from a different program, the President should consider who might be a plaintiff in a lawsuit because funds are moved away from their original purpose…. unless that original project comes in under budget.
[Update: One commenter suggested calling the border wall a memorial and naming every mile of the structure in memory of a U.S. citizen (or lawful permanent resident) killed by an illegal alien who was in the United States unlawfully. This may sound cheesy at first. But when it comes to public debate and what it takes to pierce through political fights, it would actually help make the point. Trump in any event needs to immediately order — using existing funds — a comprehensive survey of the border including with satellite imagery. Trump could then designate each mile of the planned border wall, with the assistance of The Remembrance Project. A bit much? Whatever it takes. Open border advocates will stop at nothing and engage in demagoguery. Therefore, a winning strategy has to consider overcoming the intense and mostly dishonest resistance…
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Turkey Human Rights, Crackdown on Press Freedom Comes Under Renewed Scrutiny in Geneva
Last week, the UK-based International Observatory of Human Rights (IOHR)and the Press Emblem Campaign held an information meeting in Geneva, to coincide with the United Nations Human Rights Council’s Universal Periodic Review (UPR) of Turkey over hate crimes, minority, and LGBT rights, and press freedoms with a specific focus on the nation’s crackdown on these rights during the failed 2016 coup and the emergency rule that followed during which the government allegedly used its security powers to arrest thousands of people who opposed it.
Turkey’s human rights record was last reviewed in 2015 during the UPR. This was the third time in 10 years that Turkey’s record has come under review
Diplomats, minister, prominent members of Turkish media and human rights defenders – including those who have been forced into exile – were present at the event. Also in attendance was former U.S. Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice Ambassador Stephen Rapp. Louise Pyne Jones, head of research, International Observatory of Human Rights (IOHR) moderated the event. Two panels were held. The first was called “Press Freedom” and included Yavuz Baydar, editor-in-chief of Ahval; Evin Baris Altintas, journalist and blogger; and Massimo Frigo; senior Legal Advisor for International Commission for Jurists (ICJ). The second panel, “Human Rights Defenders,” included Dr. Sebnem Korur Fincanci; president of the Human Rights Foundation in Turkey; Nurcan Baysal, award-winning Turkish Human Rights Defender and Journalist; and Anne van Wezel, former co-chair EESC EU-Turkey Joint Consultative Committee.
Following an attempted, and failed, “coup” against the ruling Justice and Development (AKP) Party in 2016, President Recep Tayyip Erdogan accused many of his opponents and naysayers, including journalists who were critical of him and his government, of supporting terrorism and prosecuted many of them. Erdogan also suggested that the attempted coup was the work of exiled Imam Fethullah Gulen and his movement, which Turkey considers a terrorist organization. Turkey has asked for the United States to extradite Gulen. Gulen has been living in the United States in a self-imposed exile since 1999. Over 250 people died as a result of the failed coup attempt.
Soon after the coup, Turkey implemented a state of emergency (SOE) which it said: “was put into effect in order to ensure the continuity of effective implementation of the measures for the protection of the rights and freedoms of our citizens, democracy and the rule of law.” However, the AK Party’s critics have maintained that the AK Party used the umbrella of its broader emergency powers and continuously postponed ending that state of emergency, in an attempt to destroy its political opposition.
Many journalists were apprehended under this state of emergency until it was lifted on July 19, 2018. As such, for three straight years, and up until 2019, the Committee to Protect Journalists ranked Turkey as the worst jailer of journalists in the world. According to Turkish, English, and Arabic-language news site Ahval, when China jailed 48 journalists to Turkey’s 47.
Nurcan Baysal, an award-winning Kurdish Human Rights Defender, Journalist, and contributor to Ahval, said she was even cautious with the words she used on the panel discussion for fear of punishment by the Turkish government. “We are censoring ourselves because of these fears,” Baysal said. “For example, before coming here I asked myself if I should use certain words, should I use the word invasion, or should I use the word war, because today in Turkey even to say war is forbidden,” she said. “Everything that I say has an effect on not only my life but of the lives of my children and family.”
Ahval editor in chief Yavuz Baydar said, “No state or power can decide who is a journalist, it is the domain for professional organizations and should always be separate from power.”
According to the IOHR, “In the previous UPR cycle of Turkey, the Turkish government officially supported 14 recommendations related to strengthening the legal framework on freedom of expression and 5 recommendations specifically related to bringing terrorism legislation in line with international human rights standards.
Hugh Williamson, the Europe and Central Asia director at Human Rights Watch recently said, “The huge number of journalists, politicians, and perceived government critics in prison and on trial flies in the face of the Turkish government’s public statements about the state of human rights in the country “Turkey’s disregard of human rights is a disservice to its citizens, who deserve to live with dignity and freedom.”
Meanwhile, Turkey’s state-run pro-government newspaper the Daily Sabah put out propaganda about the Erdogan government writing, “U.N. Human Rights Council highlighted Turkey’s achievements in the fields of judiciary, human rights and humanitarian causes on Tuesday during a Universal Periodic Review (UPR) meeting in Geneva.”
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