Would Declaring a “National Emergency” to Build Trump’s Border Wall Set A Dangerous Precedent?
Jonathon Moseley
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Would a declaration of an emergency to build a border wall create a bad precedent? At the end of the last week, much of the political discussion here in Washington, D.C. in talk shows, statements from Congressmen and in conservative publications focused on warnings of how a future Democrat President might abuse a similar process to push left-wing policies.
If Trump can declare an emergency to build the border wall, could a future Democrat President Chelsea Clinton declare an emergency and take people’s guns or force or enact legislation to fight the myth of man-made climate change. No, “that’s not how any of this works.”
These concerns are understandable but misinformed. Those raising concerns really have not investigated what is involved.
Those who generally talk the Republican party out of actually winning year after year raise fears of legislative action by a Democrat president. There is nothing in the National Emergencies Act of 1976, declaring emergency, or anything that President Trump and supporters are suggesting that relates in any way to creating legislation. That is why President Barack Hussein Obama acted illegally by expanding the Deferred Action for Childhood Arrivals (DACA). That was a legislative change.
With the border wall, Trump will merely be spending money on a border wall that Congress has already voted to build and which is mandatory under existing statutes. A president cannot create new legislative policy.
Congress has given every president — including even President Donald Trump — the power to declare a national emergency under various statutes including under 50 U.S.C. 1621 and 50 U.S.C. 1622. Ever heard that a president declared a national emergency because massive tornadoes struck a rural town or a hurricane hit New York City or there are wildfires in California? Those are routine declarations of emergencies.
But there must be specific laws that get “switched on” under a presidential declaration. This does not allow a president just to make things up out of whole cloth. This does not give a president any power to enact legislation or create any new rules. It only activates what is already written in laws already passed by Congress and signed into law in the past.
A president is required to identify which existing legislation he or she is activating in the text of the emergency declaration. A declaration of an emergency is not something that can just be pulled out of the blue sky. It is tied to specific legislation.
Existing laws give Trump the authority to “reprogram” money appropriated for the U.S. Department of Defense to construction of some or all of a border wall along our nations’ international border with Mexico. The most directly applicable is 33 U.S. Code § 2293 “Reprogramming during national emergencies.” Other statutes include 10 U.S. Code §2803 and 10 U.S. Code §2808.
In fact, there are more than 100 statutes that are triggered when a president declares a national emergency, writes attorney Elizabeth Goiten, Co-Director for Liberty & National Security for the Brennan Center.
Under existing statutes and his powers as President, Trump could use some of the $700 billion appropriated for the military one year ago in the very large and controversial omnibus spending bill. At the time, a year ago, Trump was already hinting (repeatedly) that he agreed to such a large spending bill specifically because some of that money could build a border wall.
Second, Congress has already voted that there shall be a barrier the entire length of the U.S. – Mexico border. Trump’s border wall has already been authorized. But more than that, a border wall is mandatory. It is not optional. It is not maybe. It is required.
In 2006, Congress enacted and President George W. Bush signed into law, the Secure Fence Act of 2006. That is the official determination of both the U.S. Congress and the Commander in Chief. Therefore, Trump would be acting to see to it that the existing law be faithfully executed.
Despite the word “fence” in the title, the law does not necessarily mandate a “fence.” The wording of the Act requires a barrier customized to the particular terrain in each location to the extent necessary to
“the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.”
So the Secure Fence Act of 2006 requires building “whatever it takes” — not a “fence” per se.
The issue is that Congress never fully funded the Secure Fence Act of 2006. Building a barrier is the law. it is mandatory. Funding it is the only action on the table.
Note that it also can make a difference, including in court challenges, that most leading Democrats voted for a border wall in the past. It may be hard for them to have standing or credibility to challenge something that they actually voted for.
Furthermore, 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.”
(Emphasis added.) Article 4, Section 4 offers no discretion or decision by the U.S. Government.
Note that unlike almost all other aspects of the Constitution which empower an official or branch as to what it “may” do, here defending the States is mandatory. There is no discretion afforded the federal government, not even a little.
The U.S. Constitution requires that Washington (primarily the Commander in Chief) “shall” defend the States. Therefore, what court has the power to question the Commander in Chief in carrying out not just a power but a command on his action pursuant to the U.S. Constitution?
Border incursions by violent drug smugglers, terrorists, and other criminals are the primary issue here. The U.S. Government is Constitutionally required to secure the borders. The Texas legislature should invoke Article 4, Section 4 by voting for an official request. President Trump would be acting pursuant to a constitutional obligation to defend the border.
Of course, only 19 Al Qaeda terrorists on September 11, 2001, murdered almost 3,000 people and severely damaged the United States and its economy. Open border advocates are scoffing that “only” 6 suspected terrorists were actually caught in 6 months — that is 12 per year actually caught — and only at the Southern border How many terrorists are too many? How many terrorists are acceptable?
Finally, so we see that the proposal that President Trump is considering would be nothing like the scenarios that some less assertive Republicans and conservatives are worrying about. We should keep in mind if these voices are always counseling against actually doing anything no matter what the circumstance. There are many who suffer from “the paralysis of analysis” leading to chronic inaction. That kind of thinking has actually placed us in many of the crises we face (by failing to block the progressive agendas).
But where is the precedent? Would it make any difference whether Trump does or does not build a wall by declaring an emergency ? If Trump decided not to re-purpose funds to finance the construction mandated by the Secure Fence of Act of 2006 would that in any way stop or discourage a future Democrat president from exceeding his or her authority? The Democrats are going to do it anyway. There is no “precedent” because the Democrats are going to push the envelope no matter what Republicans do.
This is one of the problems with our country. Conservative tie one hand behind their backs and don’t really fight for the U.S.A. Leftists fight like vicious banshees. The result is predictable. There is a one-way ratchet wrench always moving towards bigger government, more regulation, and more socialism, because leftists fight and conservatives don’t. The same is true in the federal courts.
But one thing is sure: If Trump does not stop tens of millions of future Democrat voters from swarming across the nation’s Southern border, a future Democrat president won’t need to resort to declaring an emergency. The Democrats — swelled by millions of illegal aliens added to the voter rolls — will control Congress and the White House forever.
The Democrat candidate for Governor of George, Stacy Abrams, is now openly calling to give illegal aliens — yes, illegal — the right to vote. SEE: WATCH: Failed Georgia Candidate Says Illegals Should Be Able to Vote
This author personally sponsored a legal immigrant from the Baltics, after teaching business there and seeing her talent, when family of her father’s son with U.S. citizenship turned their back on her. She earned a highly-technical, skilled, medical-related profession and is now a valued technician at a VA hospital. She had to become a U.S. citizen to vote.
But only months after she was sworn in as a citizen by a federal judge, she registered as a Republican and cast her first-ever vote proudly for Republican Donald J. Trump. Few things tick her off more than other would-be immigrants who don’t follow the rules and go through the same difficult process that she applied herself to complete.
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