Border wall

My Op ed on Trump, Emergency Powers, and the Wall

The op ed was published yesterday in the New York Daily News, but may be even more relevant today.

|The Volokh Conspiracy |

Yesterday, the New York Daily News published my op ed on why "Using Emergency Powers to Seize Property and Build the Wall Would Set a Horrible Precedent." The topic may be even more relevant today, now that Donald Trump has said he will "almost… definitely" resort to emergency powers to build the wall if Congress does not give in to his demands. Here is an excerpt:

Last night, President Trump restated his desire to build a border wall, despite Congress' refusal to appropriate funding for it. Fortunately, he did not declare a "national emergency," as he had previously threatened to do. But administration officials indicate that option remains on the table if Congress refuses to give in to Trump…. The claim that emergency authority can be used to build the wall and seize property through the power of eminent domain is highly dubious. If the President succeeds, it would set a dangerous precedent.

One of the fundamental principles of the Constitution is that Congress is the only branch of the federal government that has the power of the purse. The President cannot spend money for purposes not authorized by the legislature. That rule prevents any one person from controlling the nation's public funds….

It is difficult to predict the outcome of a legal battle over emergency powers. Courts often give Presidents undue deference on national security and immigration issues. But, hopefully, judges will see the importance of strictly enforcing constraints on the exercise of dangerous emergency powers.

Even if Trump can use an emergency declaration to secure funding, that does not mean he can seize property by eminent domain. Supreme Court precedent states that the use of eminent domain must be "expressly authorized" by law. No emergency laws "expressly" permit the use of eminent domain for border walls not otherwise authorized by Congress….

If Trump succeeds in using emergency powers to build the wall and seize private property, it would set a dangerous precedent for future Presidents. They too could declare a "national emergency," and then spend funds to take private property, even without clear congressional authorization.

Conservatives who cheer Trump now may regret it if the next Democratic president uses the same powers to appropriate funds and take property for liberal policies. No president of either party can be trusted with such dangerous unilateral authority over public funds and Americans' property rights.

I wrote about the dangers of using emergency powers to try to build the wall here. In this post, I wrote about how Trump's plan to build the wall by using eminent domain is just one aspect of his generally awful record on property rights issues.

NEXT: Steve King's White Nationalism Is Deeply Un-American

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  1. The NY Daily News is a radical-left, “I hate Trump,” “I hate conservatives” rag. By the way, they also hate libertarians. You were used.

    1. Any thoughts about the, you know, content of the piece?

      1. As a matter of fact, yes: it’s wrong in som many dimensions I don’t know where to begin. Of course the president can spend money on the wall, by re-allocating military funding. Of course he can use ED to acquire land to build the wall. Why Somin says he can’t do these things is puzzling; probably willful ignorance, maybe as simple as lying. It’s clear he just hates Trump.

        1. You are just being contrary. Of course is not an argument. At least Ilya Somin cited a Supreme Court opinion in support of his position.

          1. But ThePublius has sovereign citizen patriotic American natural law going for him.

            And he really, really believes.

            1. He’s an infinitely more valuable contributor to this site than a moron like you.

              1. And yet my preferences have prevailed in American society throughout my lifetime, and guys like you comply with those preferences as American progress continues against your wishes and efforts..

                No wonder you guys are such cranky malcontents. Well, that and the reality of life in our desolate, can’t-keep-up red states.

                1. You are such a sad little man, with nothing better to do than copy and paste the same drivel over and over and over again. What an empty life you lead.

                  1. You’re in for some sadness, jph12. The Conspiracy has been repetitive for years, and the Conspirators recently seem to be throwing in the towel on even those attempts to make movement conservatism more popular among educated, informed, accomplished audiences. American society continues to move in a liberal-libertarian direction.

                    Carry on, clingers. You have (some of) my sympathy.

                    1. “The Conspiracy has been repetitive for years”

                      And yet you spend all day, every day, copy and pasting the same little drivel. The emptiness of you life.

  2. If only there was a branch of government that could pass some kind of an amendment to the constitution that would expressly limit the power of the Executive branch. If only.

    1. 3/4 of State legislatures or ratifying conventions?

    2. They wouldn’t need an amendment to the Constitution.

    3. I think if the Congress decides that it’s time to bring Trump to heel, they have a pretty clear method.

      Defund the U.S. Secret Service’s travel budget, so they can’t go off to visit Trump’s golf resorts every weekend.

      Or just defund Ivanka’s detail.

      1. Trump can pay them himself.

        1. But he wouldn’t.

        2. Can he? That seems like a less-than-obvious question, whether the person being protected, or indeed any private citizen, can pay the salaries of the secret service.

          1. No, he cannot. He could pay for private security.

            Why would the GOP Senate do this petty thing?

            I will also note that Trump has cut his traveling since the partial shutdown. No Florida trip for Christmas/New Years and no trip to Davos.

      2. Funny how leftists never had a problem with Michelle Obama’s many unnecessary vacation junkets all around the world. Spending hundreds of millions of dollars.

        And at least Trump is an ok President, getting so,e good things done.

  3. The Volokh Conspiracy seems to have become the Somin Conspiracy of late, and that’s not a change for the better.

    1. Agreed. It’s getting old. I used to say I miss the “ignore user” feature in comments. Now I wish there was and “ignore blogger” feature.

      1. Or, you know, you might try using the non-automatic method of “ignore blogger”.

    2. If you only want news that agrees with your existing positions, try FOX or Breitbart.

      1. Don’t forget RedState, Gateway Pundit, FreeRepublic, Stormfront, and InfoWars.

        1. I’ve never been to any of those sites. Try harder.

          Poor Artie, how’s it feel that the only poster more universally annoying than you is Hihn?

          1. I’ve never been to any of those sites.

            Maybe try it sometime? You don’t know what you’re missing!

      2. Reading Somin is entertaining. It can be summed up generally into three things: linking to himself about political ignorance, wailing about open borders, and teeth-gnashing about Trump. It’s not about agreement, it’s about lack of substance.

      3. Shawn, that’s rich coming from a hive mind progtard like you. Or any progtard for,that matter.

    3. You could go elsewhere, and that would be a change for the better.

      1. Aw, did you come up with that all by yourself?

  4. “No emergency laws “expressly” permit the use of eminent domain for border walls not otherwise authorized by Congress….”

    10 U.S.C. ? 2663 – U.S. Code – Unannotated Title 10. Armed Forces ? 2663. Land acquisition authorities

    ” (a)?Acquisition of land by condemnation for certain military purposes.–(1) ?Subject to subsection (f), the Secretary of a military department may have proceedings brought in the name of the United States, in a court of proper jurisdiction, to acquire by condemnation any interest in land, including temporary use, needed for–

    (A) ?the site, construction, or operation of fortifications, coast defenses, or military training camps;”

    So, your argument here would be that a wall isn’t a fortification? I’m not sure how much weight I’d place on that.

    1. Oh, and section f:

      “(f)?Advance notice of use of condemnation.–(1) ?Before commencing any legal proceeding to acquire any interest in land under subsection (a), including acquisition for temporary use, by condemnation, eminent domain, or seizure, the Secretary of the military department concerned shall–

      (A) ?pursue, to the maximum extent practicable, all other available options for the acquisition or use of the land, such as the purchase of an easement or the execution of a land exchange; ?and

      (B) ?submit to the congressional defense committees a report containing —

      (i) ?a description of the land to be acquired;

      (ii) ?a certification that negotiations with the owner or owners of the land occurred, and that the Secretary tendered consideration in an amount equal to the fair market value of the land, as determined by the Secretary; ?and

      (iii) ?an explanation of the other approaches considered for acquiring use of the land, the reasons for the acquisition of the land, and the reasons why alternative acquisition strategies are inadequate.”

      He’s got to try to buy it by normal means first, and has to notify Congress prior to use of eminent domain. But as I read it, he doesn’t actually need Congressional permission. The above code already grants that.

    2. “Appropriations available to the Department of Defense for operation and maintenance or construction may be used for the acquisition of land or interests in land under this subsection.”

      So Trump may re-direct DOD construction funds.

      1. Seriously, I’m open to the possibility that I’ve just overlooked the Open Border act of 2015, or something, but if I, without any legal education beyond reading the Volokh Conspiracy could find this, it’s something Ilya at least needs to address.

        1. Tons of people ragged on Trump for “military eminent domain” but there it is.

          Its like the White House has a counsels office or something.

          1. And “only the best” in this White House. Right, Bob?

    3. Thanks so much for sharing this! I was generally agreeing that eminent domain couldn’t be used without Congressional approval, but this sure seems applicable. I hope Ilya addresses it in his next post on this.

    4. This wall is not a fortification. We do not live in Fortress America.

      When the crisis is that Congress won’t give you what you want…that’s not a crisis, that’s just living in a republic.

      1. A wall built by the military on a border to prevent incursions is about as “fortification” as it gets. Seriously, you’re in denial here.

        1. ‘incursions?’

          That’s DHS not DoD.

          1. Are you seriously suggesting armed forces don’t defend borders?

            1. Not against random noncitizens walking over them.

              1. I have been to foreign countries. There are OFTEN armed forces at even peaceful borders. They’re not there with tanks, but they’re there with soldiers, guns, and some kind of fortifications that mark the border.

                1. Ken, many of the people who post here are really clueless about anything to do with the military. So expect a lot of idiotic statements like that.

        2. A school built by the military in Afghanistan is not a “military academy.” So just because the military builds it does not make it a fortification within the meaning of a statute. One must start with the “military purpose” requirement of 10 U.S.C. ? 2808. Preventing illegal immigration, drug-smuggling or human-trafficking isn’t prevention of an “incursion” in the military sense. A wall to prevent these crimes, or even infiltration by terrorists/spies doesn’t suggest a “military purpose”– which is narrower than a “national security” purpose. These are matters in the purview of DHS, DEA or FBI. A “fortification” in this statute is one of three specific military items that authorize the secretary to condemn/acquire land. It follows that “fortification” was intended to be specific. I think the most plausible reading is that Congress intended the ordinary military use of the term, which would be walls and buildings built to shield our armed forces from attack by an armed enemy, not to prevent criminal entry into the country. If the latter was the legislature’s intent, it would have provided that power to another agency. Further inquiry might be made to determine whether prior constructed border barriers had ever been statutorily referred to as “fortifications” by Congress. I doubt very much that it is true. The statute must be read as consistent with the entire statutory scheme (not to mention separation of powers), as opposed to political preference.

      2. “This wall is not a fortification.”

        LOL History says otherwise.

        Hadrian’s Wall, Great Wall of China.

        1. LOL History says otherwise.

          Hadrian’s Wall, Great Wall of China.

          Since you are such a big fan of history – how well did those walls work anyways?

          1. Pretty well. Not perfectly of course. No fortification of defense is perfect.

            Hadrian’s Wall was effective for 225 years. When Rome withdrew from Britain, it was no longer garrisoned so ceased to be effective.

            The Ming Dynasty Great Wall of China was effective for several hundred years too. The Manchus breached the wall and defeated the Ming because of treason.

            1. “The Manchus breached the wall and defeated the Ming because of treason.”

              NO COLLUSION!!!

              1. No collusion you stupid bitch.

        2. We are talking about this particular wall, which is not a fortification, despite lunatic ravings about asylum seekers being an invading army.

    5. “So, your argument here would be that a wall isn’t a fortification? I’m not sure how much weight I’d place on that.”

      That wouldn’t be my argument. You are going to have to show me where 10 U.S.C. 2663 says the Secretary gets to decide what fortifications, coast defenses, or military training camps get built, instead of building the ones Congress tells him to. I haven’t done a deep dive, but it sure looks to me like this says that, if Congress tells the Secretary to build a wall, the Secretary is authorized to use regular old eminent domain to do so.

      The very next provision states that “[n]o military department may acquire real property not owned by the United States unless the acquisition is expressly authorized by law” except in certain exceptions. Your interpretation of 10 U.S.C. 2663 seems to turn this provision into a nullity.

      1. Now, that’s certainly a relevant point.

        But, as somebody above pointed out, the White House does have legal counsel, and seems to think it’s not an open and shut case that they can’t do it.

        Well, if he tries to do it, it will get litigated in great detail, and points will be raised neither of us saw coming, and which Ilya isn’t interested in acknowledging, because he does want it to be an open and shut case. Because open borders is a moral crusade for him, and the crusade is dictating his legal conclusions.

        But what impresses me is that preventing a wall is now the highest priority of people like Schumer, who were just a few years ago publicly saying it was an urgent need.

        They were saying that when they thought voting for it wouldn’t result in it being built, of course. The political establishment was running a bait and switch with the public on border security, is still trying to, and Trump’s great sin is that he’s actually trying to give the peons what they’ve been promised.

        This is one of those topics where the political establishment had thought democracy defeated, that they’d made voting for border security futile.

        1. “But, as somebody above pointed out, the White House does have legal counsel, and seems to think it’s not an open and shut case that they can’t do it.”

          Who cares what the White House seems to think? What someone seems to think, what someone actually thinks, and what reality actually is are often very different things. And a politician believing that he can do something that he can’t is one of the least surprising things ever.

          Ilya Somin posted a Supreme Court opinion supporting his position. You posted a statute that does not seem to be applicable and asked why he didn’t address it. So far, it seems pretty open and shut.

          “But what impresses me is that preventing a wall is now the highest priority of people like Schumer, who were just a few years ago publicly saying it was an urgent need.”

          I don’t know why you find political hypocrisy impressive. It’s pretty much par for the course for both parties, all the time. Although you’ll have to show me where Schumer was saying that a full length wall across the entire southern border was an urgent priority.

        2. But what impresses me is that preventing a wall is now the highest priority of people like Schumer, who were just a few years ago publicly saying it was an urgent need.

          Only a fool believes anything Trump says.

          1. While I’m not particularly impressed by the charge of hypocrisy, the amount of spin in that Politifact article is a prime example of why many people do not take supposed fact checkers seriously.

            1. The point is that the proposal Schumer supported was enacted, and is, whatever else, much less fo a barrier than Trump’s stupid wall.

              Let me add that for a Trump fanatic like Brett to complain that a politician has changed his position is beyond laughable.

              1. Ah yes, the old, he only supported a less-effective barrier gambit. Go with that one. That article is mostly spin, not fact checking.

                I’ve already said I’m not impressed with the charge of hypocrisy. They’re all politicians. They all do it. And there’s nothing particularly hypocritical about supporting one plan that includes physical barriers while opposing another. But when you amp up the sanctimony, you open yourself up to the charge.

                1. They all do it? I grant you that most of them do it. I have formed the impression that Senator Coons of Delaware might not do it, but I don’t follow him closely enough to be sure. Can you disillusion me?

                  1. I could, but then you’d just pick some other random name and ask about them. I’m not responsible for your political education.

                    1. Ah yes, the old, he only supported a less-effective barrier gambit. Go with that one. That article is mostly spin, not fact checking.

                      Well, maybe you can point me to some verification of the Bellmore/Trump claim. Otrherwise you dismissal of the Politifact piece is unconvincing and unsupported.

                      Besides, what’s so wrong with it? Suppose Senator X supports building say, one new aircraft carrier, and it in fact gets funded and built. Two years later the President wants to build three more carriers. Why is it remotely hypocritical fro Sen. X to oppose that as an unnecessary and useless waste of money?

                      And the wall will be useless, as well as costing $5 billion.

                    2. The wall will not be useless, but it will cost much more than $5 billion.

                      I’ve already expressed doubt about the validity of Brett Bellmore’s claim, so I’m certainly not going to spend any time trying to defend it.

                      The verification of the Trump claim is right there in the article. Trump didn’t say Schumer supported the wall. Trump said Schumer support physical barriers. Which he did. Politifact, however, chose to spin it as if Trump said that Schumer supported the wall.

                      And I agree that there’s nothing hypocritical about supporting some physical barriers at one point, and not all the physical barriers at another. But when you go beyond opposing them, to saying that they’re immoral, then you do open yourself up for charges of hypocrisy.

            2. Politifcat is now run by leftists to reinforce their lies. Just more progressive propaganda.

    6. The law you cite authorizes the use of eminent domain for military projects, but does not authorize doing so for building a wall Congress hasn’t funded. And as many conservative commentators have pointed out, the National Emergencies Act provisions which permit military construction without Congressional authorization require an emergency that “may require the use of military force” which this does not. (See, for example, David French in the National Review.)

      The argument is that nothing in the section authorizes using military funds for the acquisition of private land absent Congressional authorization. Instead, it allows the use of eminent domain for projects that are otherwise lawful (such as a project authorized by Congress or permitted under the National Emergencies Act). This isn’t one of those. A general authorization for eminent domain under normal circumstances doesn’t become express permission to use the power of eminent domain for border walls not otherwise authorized by Congress just because you and/or Trump want it to.

  5. I fully agree that conservatives who cheer the use of executive power now will regret it when a Democratic president wields executive power in the same extralegal way. And I did regret it when Obama used that power. But where did that regret get me? If we couldn’t restrain Obama, then it seems to me we can’t restrain Trump. Regrettable, sure, but at least it’s symmetrical.

    1. What “extra-legal” thing has Trump done, or threaten to do?

      1. Mostly he’s catching grief from the courts for not continuing to do extra-legal things Obama did, like DACA.

      2. I am just taking Somin at his word above, and on his take on the immigration bans; the appointment of Matthew Whitaker is probably another one. I’m not saying I agree with Somin. The broader point is that both sides protest vehemently whenever a President of either side takes unilateral action not specified in the constitution. As far as I’m concerned, about the only powers the President has is to name (but not confirm) a bunch of governmental officials, to veto bills, and to serve as commander-in-chief (but not declare war.) Clearly my view of what is extralegal is way more than what most people feel. By my standard almost anything any of them do is extralegal, but my standard isn’t the Supreme Court’s.

        1. Well, that explains a lot. So not so much “extralegal,” but extra-jsfreason. I think what Trump proposes regarding the wall is totally within his power as executive, including ED takings, and reallocation of military budget to do so. And I hope he does! Walls work. Just ask Jim Acosta.

          1. Ok, but down that path lies the justification (to his supporters) to Obama’s actions. I’d rather call it all extralegal than call it all legal.

            1. Yeah, just as soon as he points out the statute that permitted his DACA program. Oh, wait, Congress considered it and refused to pass it.

              1. “Yeah, just as soon as he points out the statute that permitted his DACA program.”

                DACA was just prosecutorial discretion bureaucratized.

                Congress caps the number of deportations at a little over 400,000. If more than 400,000 people need to have deportation hearings, then the President gets to pick who gets them. (Or, as in the case of DACA, who doesn’t get one)

                1. “DACA was just prosecutorial discretion bureaucratized.”

                  No, DACA went beyond deciding not to deport a particular class of people. It also extended affirmative benefits.

                2. Prosecutorial discretion isn’t that systematic. DACA was a “take care” violation.

                  1. “Prosecutorial discretion isn’t that systematic.”

                    Why wouldn’t you want standards to govern the conduct of prosecutors exercising discretion? If prioritizing violent criminals is a good idea, a systematic policy stating so is also a good idea.

                3. Oh bullshit. There is no question that Obama’s executive orders were highly illegal.

        2. ” the appointment of Matthew Whitaker”

          Authorized by statute for a 270 day period. Legal, not “extra-legal”

          1. Yep. The requirements for the appointment, and the maximum length are simple, and clear.

    2. “I fully agree that conservatives who cheer the use of executive power now will regret it when a Democratic president wields executive power in the same extralegal way. ”

      Maybe Congress should recall some of the discretion it gives the executive.

      BTW, “extralegal” is a meaningless term. Things are either illegal or legal.

      1. In the final analysis, actions are either legal or illegal. Until that analysis is complete (which it essentially never is) things which are unsettled are extralegal, ie not yet definitively legal or illegal. There. I’ve made it (I hope) less meaningless.

        1. Nope, saying “(which it essentially never is)” about legal/illegal makes extralegal even more meaningless.

          You are saying everything is extralegal.

          1. Murder is illegal. Cocaine trafficking is illegal. Entering a restaurant and ordering a meal during open business hours is legal. Vetoing a bill passed by both Houses of Congress, or nominating a Supreme Court Justice to the Court is legal if you’re the President of the United States.

            Using racial animus (if proven) as impetus for an immigration policy implemented by Executive Order seems to be illegal under current jurisprudence, but may not be in the fullness of time. It is an act whose legality is currently under serious dispute. (This ignores the question of whether the racial animus is proven.) So that action is extralegal.

            1. It didn’t take long for someone to play the “racist” card. Typical of Democrats and progressives: ‘everyone who I disagree with or I don’t like is a racist, and racism is the only motivation for what they do, regardless of other obvious reasons, or what they say.’

              The racial animus accusation is stupid.

              1. “It didn’t take long for someone to play the ‘racist’ card.”

                In the sense that nobody played the “racist” card?

                1. “In the sense that nobody played the “racist” card?”

                  When jsfreason said the following, he more than implied that the President’s motivation for his executive orders was racist:

                  “Using racial animus (if proven) as impetus for an immigration policy implemented by Executive Order seems to be illegal under current jurisprudence, but may not be in the fullness of time. It is an act whose legality is currently under serious dispute. (This ignores the question of whether the racial animus is proven.) So that action is extralegal.”

              2. Quit embracing or appeasing bigotry and people will stop regarding you as a racist and calling you a stale-thinking bigot.

                The race-targeting voter suppression has to go. The bashing of brown people and gays, too. The pathetic drooling over a wall to stop the dirty, non-white hordes must end. The white nationalism also needs to go.

                That, or you not only will continue to be crushed in the culture war but also will be personally shunned by better, younger Americans as our electorate improves.

                It’s your choice. I will be content either way.

                1. Arty, kill yourself. You have no value, and are barely a person. Just a malignant thing. You’re an argument for SIDS.

          2. Legal? Why it’s /better/ than legal! It’s EXTRA-legal!

  6. It’s long overdue that the defenders of the administrative state get a big taste of their own bitter medicine.

    1. Spite-based policy is the best policy!

      1. Congress eventually allowed the dubiously constitutional independent counsel law (see Scalia’s dissent in Morrison v. Olson) to lapse after presidents of both political parties were ensnared by its limitless tentacles. Particularly because SCOTUS is largely AWOL, a tit-for-tat strategy seems like a worthwhile try.

        1. If that’s your plan, you’ve badly misjudged the incentives.
          The independent counsel law caused pain to Presidents. Here the pain falls on a bunch of people who can’t even vote.

          That doesn’t make the left sad, it makes them righteous. You ain’t taking down the administrative state this way.

    2. This is how principles are exercised all right.

  7. Curious, if the President declared an emergency and followed the necessary findings and publication requirements, who has standing to sue the declaration? Also, if he redirected appropriated funds from the COE that was for construction but not allocated to a specific project, who would have standing? I do not see anyone with an actual harm.

    1. “if the President declared an emergency and followed the necessary findings and publication requirements, who has standing to sue the declaration?”

      Whoever had a project that was approved and contracted out, and who was expecting to do the work they’d contracted to do, when the President decided to spend the money on the boondoggle instead. Plus, of course, whoever didn’t like the “fair” price offered for their property that was seized.

      1. Pollock, you really are an enemy of the republic.

    2. The people with probably the clearest case would be those whose property is being seized by eminent domain.

      1. Them, and whoever has standing when the President tries to spend money appropriated for X on Y instead.

        1. I’m not at all sure that they would actually have standing were that to happen (or maybe they have standing but lose anyway). It seems like, at most, that would be a breach of contract.

          And JoyfulWisdom specified money that hadn’t been allocated to a particular project yet, so there wouldn’t really be anyone in this hypothetical.

  8. -There are 34 Democrats out of 52 who voted for border barriers/fences in the past. Those 34 Democrats voted to fund and build a physical barrier in the past. We have 700 miles of fences/physical barriers today. How are additional physical barriers in conjunction with drones and other technologies NOW immoral? Even if the current President is hyping the situation, there is rank hypocrisy to object as immoral physical barriers.

    If the President agrees to open the government and trust that there will be honest negotiations for border security, it will be “Lucy pulling the ball from Charlie Brown”. It will be Simpson Mazolio and Reagan all over again. Open borders with no security. Democrats did not follow through with what they promised in exchange for Reagan’s agreement. Can the US Government not take some action to stem the flow of illegal activity at the border. I’m all for LEGAL immigration. Everyone follows the same rules and do not jump ahead in line of others who are following the rules.

    1. You do know the status quo now if we open the government is nowhere near ‘Open borders with no security.’

      …Right?

    2. “How are additional physical barriers in conjunction with drones and other technologies NOW immoral?”

      They were in favor of physical barriers as long as they were being put in place by somebody who didn’t intend to let them work.

      But mainly the Democratic party is now much more invested in “electing a new people” than they used to be. Replacing us with a more tractable population has become their highest priority.

      1. Tractable?!?

        HA!

        Which group of people are more tractable?

        Those who want change, are progressive, want modernization, etc?

        Or those who are conservative, orthodox, narrow-minded, etc.?

        1. People who can go from “gay marriage is not a constitutional right” to “you are a bigot if you don’t believe gay marriage is a constitutional right” in three years seem pretty tractable to me.

          1. It’s almost like “bigotry” is whatever a bunch of schulbs say it is this year.

            1. I mean, according to vox, Laci Green is alt-right now.

            2. Everything like that is based on what schlubs say, though. Bigotry is about social context, and will change with society and perception.

              It’s on the same continuum of what’s polite and what’s unacceptable and even the meanings of words if they become socially relevant.

              ‘This changed too fast to be true’ doesn’t make much sense.

              1. “‘This changed too fast to be true’ doesn’t make much sense.”

                Except to people with a modicum of self-reflection and intellectual honesty. I get why you don’t understand it.

                1. So what do you think happened with the sudden switch in poll numbers with respect to gay marriage, and tolerance of homosexuality generally?

                  Seems to me that quick change in public thought lines up quite well with a quickly moving line of what’s socially acceptable to believe with respect to homosexuality generally.

                  It’s an outlier, but hardly proof of insincerity or somehow being untrue.

                  1. So condemning bigotry just means condemning taking a position that the left disagrees with? Opposing gay marriage 10 years ago wasn’t bigoted because many lefties, like Obama, were doing it, but it is now, because lefties supported it?

                    And trans exclusionary dating/sex wasn’t bigoted two years ago, but it is now, for the same reason?

                    I mean, I always knew that, but I’m surprised to see a lefty admit it.

                    1. Are you arguing that what is bigoted has a fixed definition for all time? Or that it’s not audience-specific?

                      A great example – you’re seizing on subgroups to highlight changing thinking about transsexuals.
                      Because the larger public doesn’t really care. Yet. This is getting hashed out and will eventually bubble up, but for now it’s just people who are into the issue that worry about it. That’s how social change occurs.

                    2. But it was bigoted ten years ago. It’s just that after ten years, more and more people realised that this was the case. Meanwhile you’re all twisted up and offended trying to tie yourself in knots over it.

                  2. “Seems to me that quick change in public thought lines up quite well with a quickly moving line of what’s socially acceptable to believe with respect to homosexuality generally.”

                    It would be helpful if you were smart enough to keep up with the conversation so that everyone is talking about the same thing. Go back an look at what apedad said, your response, then apologize for wasting everyone’s time. This discussion has nothing to do with sincerity.

                    1. I did.

                      I then looked at your post from 12:51PM, which quoted my language about ‘changed too fast to be true’ and responded to that.

                    2. That doesn’t sound like an apology. This is why it’s so hard for me to understand if you are just stupid or dishonest.

                    3. You take issue with a post of mine.
                      I responded to that post.
                      Your response is to say I’m not following the thread of the conversation.

                      Sounds like you’re trying to change the subject via failed pedantry to me. Does that work often?

                      Plus, of course, TiP responded to me, so there’s conversational fodder there, your attempt at scolding notwithstanding.

                    4. “Sounds like you’re trying to change the subject via failed pedantry to me.”

                      That’s because you aren’t very bright, or honest, still struggling to decide.

                    5. Way to not engage with my argument, and just say ‘nuh-uh’ to my conclusion. Got to play with what you got, I guess.

                    6. Your argument, as is so often the case, is not worth engaging.

            3. It’s like the new fashions for,the season. Not surprising though, progressives have no principles, morals, or core values of any kind. This is why democrats attract so many sociopaths.

    3. So I guess this shows the whole thing about Democrats not caring about border security is, of course a complete lie and, obviously, supporting some physical barriers is not the same as supporting a continent-spanning monstrosity.

  9. Trump should announce that if he doesn’t get the wall he will have to set up gun turrets every 100 yards or so and use deadly force to repel invaders, even if they do not come as a military force. Then the democrats have a choice: wall or deadly force.

    1. Yeah, that sounds politically astute.

    2. Walls and turrets?

      I thought we were in the 21st century, not 16th century.

    3. Murder as immigration policy. Brilliant.

      1. Government defending against invaders is not “murder.”

      2. Well, they’ve already resorted to kidnapping and negligent homicide, so why not?

    4. If the President can set up gun turrets without congressional approval why would he need to make this threat to get his wall? He would just build the wall. (If he can’t set up gun turrets without congressional approval, the threat would be idiotic.)

    5. Wow the right is really on fire with the ideas and the energy. Actually on fire. Burning and screaming.

    6. I would rather use that kind of weaponry on the de ocrats themselves. Then we could solve nearly all of America’s problems.

  10. Trump should order the military to fire on these illegal invaders. Then they won’t be separated ever again. Mother and child will be forever united in the loving arms of Hay-Sus!

  11. Somin and the professional politicians against Trump’s wall should immediately remove the doors blocking access to their offices . . . failure to do so shows blatant hypocrisy – and yes the fundamental principle is exactly the same.

    1. Pelosi and all democrats should have any barriers around their neighborhoods or homes removed as well. This includes privacy fences.

  12. The wall is coming. Get used to it. Also to a second term.

    1. It will probably take at least a fifth term to get the wall built. First they have to settle on whether it’s going to be a wall or a fence, or a combination. Then they have to do the design work and figure out how they are going to acquire the land. Then it’s putting together the bid packages and putting them out to bid, a multi-month process. And, of course, the inevitable bid protests that accompany virtually every major public works project, which will delay things for another couple months. Only then will you get to the actual construction, which like virtually every major public works project will be behind schedule and over budget. And absolutely nothing that Trump can do can force his successor to continue construction.

      And that’s not even considering the delays caused by the inevitable litigation.

  13. The steel seizure cases addressed the limits of presidential authority to order eminent domain by executive order.

    And Duncan, the Hawaii martial law case, suggests that courts have power to determine whether an emergency exists for purposes of evaluating emergency delegations of power even in time of war.

    Emergency powers represent a weakness in the armor of constitutional republics. Even before the demise of the Weimar Republic in 1933, it was undermined by repeated use of emergency powers and resort to presidential decrees and suspensions of normal constitutional rights and procedures.

    It is critical that the most essential suspensions of liberties require a genuine emergency. It is also critical that a single person should not have the sole power to determine if an emergency exists.

    Immigration and border control represents a long-term social issue about which different people can legitimately have different views, and about which Congress has repeatedly changed policy over years and decades, sometimes tightening and sometimes granting amnesties and other relaxations.

    It is simply not the type of issue that can be characterized as an emergency.

  14. (Cont.)

    The situation strikes me as analogous to cases in which various state boards of health attempted to invoke emergency powers over he years to ban soft drinks, tobacco, and other controversial products on grounds a health emergency existed over them. Courts repeatedly and rightly said that these matters represent long-term social policy issues that need to be the subject of legislation, and are not similar to emerging epidemics and other acute crises that represent genuine emergencies where emergency powers are authorized.

    This situation is similar. It is a long-term, slowly developing social issue that warrants a legislative solution (whatever one thinks the policy behind that solution ought to be). It therefore needs to be addressed by Congress. It resembles a long-term irritant, not an acute threat. It does not resemble wars, terror attacks, or other genuine military emergencies justifying use of emergency military powers.

    1. “Courts repeatedly and rightly said that these matters represent long-term …”

      Cites?

    2. ReaderY, a well thought out and well written post, but I disagree. Illegal border crossings have been happening for a long time, and that may indeed be a long term issue, but it’s not simply a social issue. It is a breach of the law. It is dangerous to the country and its citizenry for myriad reasons, not least of which stem from our inability to monitor or vet illegal entrants. There are disease, criminality, and contraband to be concerned with.

      Why is this an emergency now, when it hasn’t been for decades? Previously illegal entrants primarily sought work and the same opportunity for prosperity, by the same means, that legal residents enjoy. But more recently there has been a flood of criminals and drugs that are wreaking havoc across the country. Here in Massachusetts we’ve seen deaths due to illicit drugs skyrocket, and the trade is plied primarily by Dominicans who are here illegally. They bring with them all of the ills associated with all organized criminal enterprises: corruption and fraud, violence, murder, extortion. They are a new and severely corrosive element in our society.
      (cont)

    3. (cont)
      Elsewhere there is MS-13. Extremely violent. A scourge on Long Island and elsewhere. These are all new and accelerating threats, and are aided and abetted by municipalities and judges who support the progressive sanctuary city doctrine and refuse to apprehend and prosecute them. We even have an infamous judge, Feeley, who wouldn’t find a Domincan with permanent resident status guilty of a serious crime because it might affect his immigration status. He was dealing heroin, and Feeley said:
      “”This was basically a money crime,” Feeley said in court, according to The Salem News.

      “This was not a drug addict who was dealing to fund his own addiction,” Feeley said, “but rather, a person who made some terrible judgments and decisions, but made them for what he thought was in the best interest of his family.””

      So, the recent surge of criminals and drugs and violence makes this an emergency. Get it?

      1. So a wall in Texas (NM/AZ/CA) is going to protect the good people of Salem, Massachusetts?

        Yeah. . . no.

        1. “So a wall in Texas (NM/AZ/CA) is going to protect the good people of Salem, Massachusetts?”

          Yes, it is. All of that crap that crosses into the country illegally diffuses into the entire United Staes. That should be pretty obvious.

          Do you think the people, contraband drugs and guns, disease, crime, and benefits drain jus stop once they cross? How did we end up with so many illegal immigrant Dominican drug dealers in Lawrence? Did they fly there? Teleport, maybe?

          By they way, regardless of the source of the drugs, the apparatus for distribution and sale is primarily illegal immigrants, at least in the case of fentanyl in MA.

      2. No. There isn’t a recent surge of criminals and drugs walking across our southern border. Crime and violence are both down at levels near historic lows. While drug deaths are up, most of those are associated with fentanyl, which is being imported from China, not Latin America (unlike with the cocaine epidemic). Violent and organized street gangs are nothing new, from Al Capone to the Bloods and Crips to MS-13. That Massachusetts is apparently willing to tolerate judges who do not do their jobs does not transform this into an emergency.

        We elect a president, not a king, and we elect a congress to tell him what to do.

        1. Except that most people who are voting to “elect” should not be allowed to vote.

          1. Not that that actually qualifies as an “except,” but I agree that the country would be better off if people like you and Rev. Arthur L Kirkland and Sarcastr0 weren’t allowed to vote. Unfortunately, the country would be much worse off if it had the power to prevent people like you and Rev. Arthur L Kirkland and Sarcastr0 from voting, because that kind of power won’t be wielded responsibly.

            1. I agree that the country would be better off if people like you and Rev. Arthur L Kirkland and Sarcastr0 weren’t allowed to vote.

              Nice.

              1. TrueAmericanParrot’s and jph12’s political philosophy is, “Democracy is the best form of government – except when we let other people vote.”

                1. Democracy is a terrible form of government. As a practical matter, a constitutional republic that incorporates some elements of democracy is one of the least terrible forms, but that’s mostly just because it’s a little bit harder to completely ruin if you start off with a good idea (which not all do).

              2. That’s the most self-reflection you’ve ever shown. Maybe there’s hope for you yet.

                1. It says a lot that you see nothing wrong with people you don’t like being disenfranchised except you worry you might be next.

                  1. It has nothing to do with people I don’t like. Plenty of people I don’t like should be allowed to vote, and plenty of people I do like shouldn’t be allowed to vote. And I’m certainly not worried about not being allowed to vote, myself.

                    1. It has nothing to do with people I don’t like.

                      Do you think anyone’s buying that?

                      I agree that the country would be better off if people like you and Rev. Arthur L Kirkland and Sarcastr0 weren’t allowed to vote.

                      ‘Yeah the three people I can’t stop gratuitously insulting shouldn’t vote…bit it’s not about who I like or not!’

                    2. None of my insults are gratuitous. All are well earned.

                    3. Quitting the field and covering with one last weak swipe.

                      Meh

                    4. I didn’t quit the field. That was the only thing worth responding to.

                      But since you keep whining, why would I care whether you believe me? I don’t respect you enough to want you to have a vote in our nation’s future. That I don’t want a government powerful enough to make that determination doesn’t change that.

                    5. Sarc, people like you are seditionists and traitors who work to make my ountry a less free, ore dangerous place to live. Choking off freedom and prosperity wherever possible. So I don’t see dealing with you and your kind as some academic discussion. You and yours are an active threat to all the principles upon which this country was founded.

                      You are the enemy within. Same as Arty, Hihn, Tony, PB, Pollock, and so many others.

            2. JPH, we could bring back McCarthyism and work to root out all the traitors, like Sarc, Arty, and ARWP. Old Joe did great work back in the day when you look at the truth, and not all the left wing media bullshit written about him.

        2. There IS a surge in illegal immigration. Many are coming here for prosperity, unfortunately there are criminals among them.

          From the Washington Post:

          https://tinyurl.com/ybkyrvzl

          Oh, and I guess it’s Chinese gangs distributing the drugs? No, it’s primarily illegal immigrant gangs and criminal organizations from Central and South America, who came her across the Southern border.

          1. Click on the story, then click on the link to the chart, then tell me where there’s a surge.

            I don’t care who is distributing the drugs. Those people are already here. And a wall across the southern border doesn’t affect either that or the importation of the drugs.

  15. Be honest, Somin. If Trump seized land to set up Free Citizenship for Mestizos buildings, you’re be applauding him.

    1. Determined to give Rev. Arthur L Kirkland a run for his money in the contest to see who can post the most stupid shit, I see.

      1. I call it like I see it.

        1. Okay, Mr. Magoo.

        2. Yes AWRWP, I’m sure you do. Such a stunted little mind.

  16. It seems pretty clear under the current law that the President can do this. I don’t think that’s how things should be, though. Imagine for example Americans vote stupidly some time in the future and some communist President takes emergency action based on an unscientific hyped up global warming scare. Maybe after Trump builds the wall, Congress will actually do something instead of nothing, and reform the emergency powers laws. That would be nice.

    1. Not a great sign of ideological commitment that more and more are taking refuge in ‘lets do this awful thing and maybe that’ll encourage people to forbid the other side from doing this awful thing.’

      Reactionary politics doesn’t dress up well as good policy, especially when it’s excusing logic justifying near-unlimited executive power.

      As for your legal analysis, it’s hard to say which part you’ve decided is pretty clearly permissible. Is it the crisis-based reprogramming of DoD funds? Is it the crisis-based massive use of eminent domain without the usual process? Is it the ipse-dixit declaration of a crisis in what has been the status quo for ages?

      1. Building the wall is a good thing. Using spending powers for a wall here instead of a wall in Afghanistan is a very good thing. Recognizing that a porous border is causing more deaths than 9/11 every year is a good thing. The possible bad thing is the breadth and definition of these powers as they currently exist, not the use of the powers.

        1. Are you switching from permissible to good thing on purpose? Because those are two very different arguments – one is means and the other is ends. Conflating the two is…telling.

          Your ‘porous border causes DEATHS’ argument is not a good one. It’s all costs not benefits. Our border with Canada, our ports, guns, cars, having a parole system. All these cause deaths, but we persist because there are material, social, or moral benefits.

          And it is far from clear a wall would be an effective cure for the border’s porousness anyhow.

          1. The end is good, and as far as the means — Although I suspect Congress should reform and restrict emergency powers, until they do, I don’t see a problem with using the legal means available that have been authorized by Congress.

          2. “Are you switching from permissible to good thing on purpose? Because those are two very different arguments – one is means and the other is ends. Conflating the two is…telling.”

            Your inability to keep up with your own drivel is . . . telling. You called building the wall an awful idea. M.L. explained why M.L. disagrees. M.L. did not conflate anything.

    2. As with all laws of this type there is a penumbra. That exists because they have to apply in situations that were not considered when they were enacted. The emergency powers laws would be an especially pertinent example of that category. The Constitution also falls into this category. You have to learn to trust the judgement of people that are well versed in the issue under consideration.

      1. I get your point here, but I think it’s more important to learn NOT to trust the judgment of any people, and to have a system that divides and decentralizes government power.

        1. And most of all, to destroy the administrative state, which is thoroughly unconstitutional.

  17. To the numerous posters who keep bringing up variations of “Democrats voted for a wall in 2006” (i.e., the Secure Fences Act, authorizing fencing of some portions of the border):

    I put a fence around part of my backyard in 2009. For good reasons.

    Those “2009 good reasons” are not a 2019 good reason to fence my front yard.

    In both 2009 and 2019 there are equally good reasons I am *not* planning to fence my front yard, despite having put up other fences in the past.

    C’mon people, this isn’t rocket surgery.

    1. Wow, you’re out of the loop. Didn’t you hear? Walls are evil now.

      1. Heh … well, regardless of where one falls on the political spectrum, which of these make the most sense?

        1) Some walls are good, so all walls are necessary!

        2) Some walls are useful, so worth spending $$ for; some walls are neutral, so expenditure is pretty marginal; some walls are ineffective, so a waste of $$.

        3) Some walls are bad, so all walls are immoral!

        Me, I’m kinda firmly in camp #2. Unfortunately, this seems to be more nuance than partisans on either side are capable of.

        1. Careful of buying that strawman – no one in the Dems is arguing to tear down the walls we have now.

      2. Apparently the Berlin Wall is an example to all Wallers everywhere, I just hope none of you read The Cask Of Amontillado.

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