Executive Power

Why Trump's Emergency Declaration is Illegal

The strongest legal argument against Trump's attempt to use emergency powers to build the wall is that declaring an emergency does not authorize him to spend money and condemn property for that purpose. But he also lacks grounds to declare an emergency in the first place.

|The Volokh Conspiracy |

The strongest legal argument raised in the various lawsuits against President Trump's attempt to use emergency powers to build his border wall is that declaring an emergency does not authorize him to spend money and condemn private property to build the wall. That's the conventional wisdom among most legal scholars and commentators. But it is also important to recognize that it is illegal to for Trump to declare a "national emergency" over this issue in the first place. That point is important for reasons that go far beyond the the specific case of the border wall. If the president can declare an emergency and tap a vast range of special emergency powers anytime he wants for any reason he wants, that makes a hash of the whole concept of an emergency, raises serious constitutional problems, and creates a dangerous concentration of power in the hands of a single person.

It makes much more sense to interpret the National Emergencies Act as only allowing an emergency declaration in a situation where an emergency actually exists—defined as some sudden crisis that cannot be addressed swiftly enough through ordinary political processes. By that interpretation, the situation at the border doesn't even come close to qualifying.

Why the President Cannot Just Declare a "National Emergency" Whenever he Wants

The relevant section of the NEA, 50 USC Section 1621, says that "With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency." The Act does not define what counts as a "national emergency." But the fact that president is authorized to declare one does not mean he can do so at any time for any reason. It makes much more sense to interpret the Act as allowing the president to declare a legal state of emergency only in situations where an emergency actually exists.

The whole point of emergency powers is to enable the government to respond to a sudden crisis that cannot be addressed fast enough by ordinary political processes, not to give the president a blank check to use that authority whenever it might be politically convenient. One of the most basic rules of legal interpretation is that words used in laws must be understood in terms of their "ordinary meaning." The ordinary meaning of "emergency" is a sudden crisis of some sort, not just any issue of any kind.

If the term "national emergency" is interpreted broadly enough to allow the president to declare one anytime he wants, that would make Section 1621 unconstitutional. Declaring a national emergency allows the president to exercise a wide range of powers that normally belong to Congress, including spending money and imposing regulations on private parties. The "nondelegation" doctrine restricts Congress' ability to delegate its powers to another branch of government. For many years, the Supreme Court has taken a very permissive approach to delegation. All the Court requires is for the delegation to be constrained by an "intelligible principle." But allowing the president to tap congressional powers by declaring an emergency for any reason he wants runs afoul of even that weak restriction. There can be no "intelligible principle" when the whole question is entirely left up to executive discretion.

At the very least, interpreting "national emergency" to give total discretion to the president raises serious constitutional problems. And the Supreme Court has repeatedly ruled that judges must try hard to avoid interpreting statutes in ways that risk rendering them unconstitutional. The most famous recent example is NFIB v. Sebelius, where Chief Justice John Roberts famously reinterpreted the Obamacare individual health insurance mandate as a tax in order to save it from unconstitutionality, even though he admitted that was not the "most natural reading" of the law. He concluded that courts must adopt any available "reasonable" interpretation of a statute that would make it constitutional, even if it is not actually the best interpretation.

I am no great fan of this "avoidance canon." But as long as the Supreme Court requires federal judges to follow it, they must interpret "national emergency" in a way that doesn't give the president unconstrained discretion to declare one anytime he wants. Interpreting "emergency" to mean something like "sudden crisis" is at least a "reasonable" interpretation of the word, and it neatly avoids any possible constitutional problems.

Ironically, conservatives and libertarians are the ones who have long argued for stronger enforcement of the nondelegation doctrine, while most liberals have generally been hostile to the idea. Trump's national emergency declaration might perhaps lead the latter to reconsider their position.

Judges may face difficult decisions in situations where it is hard to tell whether the problem at hand really is a suddenly emerging crisis or not. But difficult borderline questions are common in judicial decision-making, particularly when interpreting imprecise terms like "emergency." When it comes to laws intended to trigger dangerous powers that circumvent the normal political process, it makes sense to put the burden of proof on the executive to show that a genuine emergency actually exists.

But even if courts should defer to the president's judgment in relatively close cases, that does not mean they should give him a blank check to declare an emergency anytime he wants. The current situation is not a close case at all.

The Situation at the Border is Not a Sudden Crisis—and therefore Cannot be Declared a National Emergency

If a "national emergency" can only be declared in the event of a sudden crisis, Trump's declaration clearly doesn't qualify. Quite simply, there is no crisis at the border. To the contrary, crime and terrorism risks in the border area are very low, and the number of illegal border crossings has been dropping. The vast majority of undocumented immigration is a result of visa overstays, not illegal border crossings at all. Trump also cites the flow of illegal drugs as a justification for the declaration. But 80 to 90 percent of such drugs are brought in through legal ports of entry that would not be affected by his proposed wall.

Moreover, it is implausible to claim that the president had declare an emergency because there is no time for ordinary legislative processes to work. To the contrary, Congress has been considering Trump's demand for a wall for over two years now. The issue is not that they haven't had time to authorize one, but that they simply disagree with Trump about the need for it. Disagreement between the legislature and the executive is not an emergency. It's a normal part of our system of separation of powers. If the president can't get Congress to pass the laws he wants, that doesn't justify circumventing it by declaring an "emergency."

The above assumes that current immigration restrictions and the War on Drugs are beneficial rather than harmful. I myself oppose both. Most of the real problems at the border arise from the grave injustices caused by these policies. But even observers more sympathetic to status quo policies than I am should be able to recognize that Trump's emergency declaration does not address any sudden crisis. Even Trump himself seems to understand that. He admits he "didn't need to do this" and only declared a national emergency because he'd "rather" build the wall "much faster" than Congress is willing to authorize.

The claim that the border situation is an emergency is also belied by the nature of Trump's proposed remedy for the supposed problem. Even setting aside delays likely to be caused legal challenges, the wall will probably take years to build. Any problem for which the wall is a plausible solution is by definition not an emergency. To claim otherwise is much like saying that we can put out a raging fire by building a new fire station over the course of several years.

The administration can argue that there is an emergency because illegal border crossings and drug flows still persist and are unlikely to be completely eliminated anytime soon, if ever. But by that standard, there is an emergency any time any federal law is not perfectly enforced and some violations continue to occur. And that's true of almost every law on the books.

For example, surveys show that over 50 percent of adult Americans admit to violating federal laws banning possession of marijuana. Only a small fraction of them have ever been caught or prosecuted. Can the president declare a national emergency and start spending unauthorized money and condemning property to go after pot smokers?

If Trump's desire to build a wall qualifies as an emergency, then pretty much anything does. The president would have unlimited power to declare any real or imagined problem an emergency, and thereby tap a wide range of emergency powers.

The Perils of Setting a Dangerous Precedent

If courts conclude that the president can declare any emergency for virtually any reason he wants, it would set a dangerous precedent that goes far beyond wall-building. The National Emergencies Act allows the president to use an emergency declaration to trigger a wide range of powers, including such extremely dangerous ones as shutting down electronic media (potentially including the internet), and even testing chemical and biological weapons on unwilling human subjects.

Even the wall-building situation is itself deeply problematic. After all, Trump is claiming not just the authority to spend money on the wall, but also the power to use eminent domain to seize the property of thousands of people. If he can do that to build a border wall, other presidents can do the same thing to take property for a wide range of other purposes.

No one person—especially a politician—can be trusted with such vast, nearly unconstrained power. Conservatives who may be comfortable trusting Trump with it are unlikely to be so happy when the next liberal Democratic president inherits the same authority and uses it to promote left-wing causes.

Some suggest we need not worry too much about setting a precedent, because there have already been numerous questionable emergency declarations, including some that have lasted for many years.

I won't try to go through all of the previous 58 emergency declarations issued since the NEA was enacted in 1976. But virtually all of them did in fact involve crises that emerged suddenly and at least plausibly required a swift response that did not leave time for ordinary political processes to react quickly enough. All or nearly all were also invoked to take measures to address the problem quickly, not ones like Trump's wall, that would take years to have any effect. And none involved the president appropriating and seizing private property for a project Congress had repeatedly refused to support on the scale the president wanted, as is the case with the wall.

It is admittedly problematic that many previous emergencies have lasted for years, without any additional congressional authorization. The NEA does not impose any time limit on an emergency declaration. So one can potentially go on indefinitely, if the president wants it to.

The NEA states that a declaration can be ended by Congress if it passes a resolution disapproving it, as congressional Democrats are now attempting to do. But any such resolution is subject to veto by the president. And he can almost always count on sufficient support from his own party to prevent his veto from being overridden by the necessary two-thirds majority in both houses of Congress.

But the failure of the NEA to effectively limit the duration of emergency declarations does not mean it also imposes no constraints on their initation. The difficulty of terminating an emergency once it has been declared makes it all the more important to enforce legal constraints on declaring one in the first place, to ensure these powers cannot be used unless there is an actual emergency.

It is certainly possible that some previous emergency declarations were legally dubious. Trump is far from the first president to abuse his authority. But the fact that some of his predecessors may have acted illegally is no reason to let Trump get away with it, too. To the contrary, it is all the more reason to crack down on such abuses of power, so they will not be repeated.

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  1. I’ve often wondered if the fact that the president can veto Congress’ attempt to revoke the national emergency is, itself, unconstitutional. If the emergency is a delegation of legislative authority to the president, then Congress should, rationally, be able to withdraw that delegation by a joint resolution. Instead the law is the president can declare an emergency, unless a law is passed that says it’s no longer an emergency. That seems kind of silly.

    1. I wondered this too, but it’s a byproduct of INS v. Chadha and the Presentment Clause.

      If Congress is going to “decide” something it has to be done according to the Constitution, meaning it being an Act that goes to the President for signing, which he can veto, and Congress can then override. The only *exceptions* to this process are those explicitly indicated in the Constitution (eg, deciding on impeachment, etc.)

      TL;DR, to have the NEA be ended by Congress acting independently of the President and without veto oversight, an Amendment would be needed. The concept of a NE itself doesn’t need to be in there now because (contra the argument) it’s only working within the powers the two branches already have re: delegation.

    2. Congress passed a law that gave the President plenipotentiary power in this situation. That law was signed into law by the President at that time.

      Congress can pass another law overriding that power….all it takes is a majority of both houses. Now, the President may exercise his Constitutional power and veto that law…..

      Should the President do that, Congress has it’s Constitutional power to override that veto.

      Explain WHERE in the Constitution the Congress can undo a law with a ‘joint resolution’? I missed that day in junior high school civics class.

      1. If it’s constitutional for Congress to delegate this sort of power to the President, then it should also be constitutional for Congress to delegate exception-making authority over that power to itself, or to a subset of itself, or to a third party. If it’s not constitutional for Congress to delegate exception-making authority over a delegated power, then it shouldn’t be constitutional for Congress to delegate the general power in the first place.

        1. I agree. Congress has made this mess, using their power of passing laws. They should fix this mess, using their power of passing laws.

          Making something up, calling it a joint resolution, and going home is not how things should be done.

          1. Flight,
            Like you, I am concerned about the procedural method(s) this Congress may use. But I think you would agree that, once the Sup. Ct finally does weigh in; IF it rules that the president cannot legally do what he did, that would also satisfy you, yes?

            1. I think it depends on the basis. If it’s something that would limit other Presidents going forward, cool. If it’s just more TrumpLaw, some rationale that clearly won’t apply once a different President is in office, not so much.

              Ideally the NEA gets struck down.

              1. Agreed.

                I have procedural problems with the various ways that a) Congress delegates it’s authority; b) The courts produce political decisions and c) the plain letter of the Constitution is mangled.

                However, while the Congress actually should do it’s job, that includes it’s duties under Article IV, section 4 of the Constitution, and it’s failure to protect the United States against invasion does indeed constitute a clear and present emergency.

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        >>>>>>>>>> http://www.payshd.com

    3. Yes, the President has invoked the broad powers delegated to him under the NEA. But the President is also, I think (but somebody can check if they doubt me), the Commander in Chief, possessing some authority and duty in his own right to defend the borders of the US from foreign threats. Seems pretty clear that there is overwhelming authority supporting the President, and very little against him but personal viewpoints advocating different policies. And if this does create a dangerous precedent, what would that be, that future Presidents are somehow emboldened to defend the borders?

      1. Many who come here don’t believe in sovereign borders.

        I am not one of them.

        1. +100

      2. More should be said regarding the really, really, really bad precedent that would be set by judicial interference in this Presidential declaration along the lines discussed in this article. Essentially (to paraphrase Zivotofsky v. Clinton), the article above expresses the view that the federal courts supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy should be. Maybe it isn’t apparent because I’m hiding it so well, but I strongly disagree with this article.

  2. “It makes much more sense to interpret the National Emergencies Act as only allowing an emergency declaration in a situation where an emergency actually exists – defined as some sudden crisis that cannot be addressed swiftly enough through ordinary political processes. By that interpretation, the situation at the border doesn’t even come close to qualifying.”

    Sure, that would make sense. But how many of the 58 emergencies declared under the NEA, 31 of which are still active, satisfy that standard?

    1. I’ll answer: one of the NE’s relates to the situation in South Sudan! I am personally very sympathetic to the plight of the South Sudanese (particulars not relevant here) but how in the world can that be a US emergency???

      1. Because laws and the Constitution mostly only matter when a particular class of elite insiders want them to.

    2. I’ll answer: one of the NE’s relates to the situation in South Sudan! I am personally very sympathetic to the plight of the South Sudanese (particulars not relevant here) but how in the world can that be a US emergency???

    3. I’ll answer: one of the NE’s relates to the situation in South Sudan! I am personally very sympathetic to the plight of the South Sudanese (particulars not relevant here) but how in the world can that be a US emergency???

      1. How much money was appropriated under that emergency declaration?

    4. Really? That’s your defence?

      “Lot’s of other people broke the constitution too, so Trump should be able to do it as well!”

      I certainly don’t think prof. Somin would have been cheering on Obama either…

      1. Rather, it’s “There is a large amount of precedence for people using the NEA for what others might consider “non-emergencies” and there was no issue. Precedence has a certain amount of legal sway to it.

        1. Armchair, when you use “legal” and “precedence” in the same sentence you give the impression that you are talking about legal precedent, but as far as I can tell the breadth of the President’s discretion under the NEA to define “emergency” has never been litigated. At most you can argue that the lack of challenge of those earlier declarations by Congress shows an acceptance of the discretion they imply, but there are other rationales for its forbearance. E.g. since most of those emergencies involve freezing assets of some foreign entity, not spending money that Congress explicitly declined to appropriate, they would not be motivated to challenge them or suffer sufficient injury to grant standing.

          While Congress can defined what the words mean in its statutes, when it fails to do so those words take on their “ordinary” meaning (in quotes because sometimes their ordinary meaning is their ordinary legal meaning). But it would be an unconstitutional delegation of this legislative authority to grant that unconstrained power to the President, and in fact the NEA doesn’t do so: It says the President has the power to declare an emergency, not to define it.

          1. As to how constraining that meaning should be, I think Prof. Somin is not quite on the right track with “sudden”. The common thread that makes emergency powers appropriate is that a situation can’t be dealt with effectively through the legislative process, either because that process takes too long or because it is too public. Asset freezes are in the second category, Congress cannot pass laws in secret and telegraphing a freeze weeks in advance would give the target plenty of time to prepare.

          2. For “lack of challenge of those earlier declarations by Congress” above
            please read “lack of challenge by Congress of those earlier declarations”

          3. So, when I talk about precedence (and notably didn’t use the phrase “legal precedence”) I talk about how the law has been used in the past, and the conditions under which the law has been used. That matters, especially when attempting to determine what Congress meant when it passed the NEA.

            And to be frank…most have been “non-emergency” definitions by the common usage of emergency. Now, none of these have been litigated. One could make the argument that Congress partially intended the NEA to be used in these non-emergency situations. At the very least, Congress did not object (at least nothing in the past record I’ve been able to find notes an objection). For example, here’s Obama using the NEA in 2014 to amend the 2003 invasion of Iraq. https://www.federalregister.gov/ documents/2014/05/29/2014-12651/ ending-immunities-granted-to-the-development-fund- for-iraq-and-certain-other-iraqi-property-and

            So, if the law has been used for non-emergency situations, repeatedly, in the past, and Congress didn’t object in the least, perhaps the law is being used as it was intended?

            1. Thanks for the reply. I agree, and think I acknowledged, that Congress’s past inaction could be interpreted as agreement. I don’t believe it is a slam-dunk, though.

              But even if that were so the word “emergency” must impose some limits. This is a Constitutional requirement that Congress can’t waive. If and when those limits are finally firmly established they may not admit all of the earlier non-precedential precedents, and they don’t necessarily have to.

            2. The NEA has certainly been abused as part of an extension of executive authority. Though in the case you cited it’s actually being used to modify a prior NEA executive order so I’m not really sure it’s a great comparison for this.

              Either way, the big difference here is that no one sincerely thinks this is an emergency or a new development. The President wanted a policy, the President tried to get funding for a policy but was unwilling to make the concessions that congress demanded to get that funding. Therefore the President is using the NEA to get the funding.

              If you let this go then you’ve just lost one of the major separation of powers in the US constitution.

              1. So, there’s a few points.

                1. “No one thinks this is an emergency”

                I would beg to differ. Now, overall illegal immigration numbers are currently down, according to estimates. (They are also much, much, higher than just about any other first world border in the world). But an argument can be made that an increase in unaccompanied minors are up substantially. These are rather more difficult to deal with, especially en masse. (Witness the recent issues in south). Futhermore, an increase in large, public, “caravans” of illegal immigrants, and attempted forcings of the border have been noted. So, in some contexts, it is becoming more of an emergency. You’ll likely differ on this point. But, others can reasonably make the point it is becoming a more serious issue. Especially in the wake of any legislative solution to the problems.

                2. “There must be some limits”.

                There are. There are certain, limited actions that can be taken, as written into law. Furthermore, Congress can reverse such an emergency declaration as needed. These are the limits. But ultimately, it’s the opinion of the President on what makes an “national emergency.”

                1. But ultimately, it’s the opinion of the President on what makes an “national emergency.”

                  Yes, I’m definitely getting the impression that you believe this, and that you believe it because that is how you read the statute, and because you interpret the fact that it has been used all over the spectrum without a peep from Congress as evidence that Congress does not object to that expansive reading. I think that summaries your argument.

                  And my answer is that if this does reach the courts I believe they will not adopt that reading, because giving the President carte blanche to declare a national emergency when his Cheerios are soggy would render the statute unconstitutional under the non-delegation doctrine. Each delegation, whether to decide when to act or decide how to act, must come with guardrails in the form of an “intelligible principle”, and the courts will look for one in an effort to save the statute.

            3. In that executive order Obama was using the NEA, but to terminate an emergency not to declare one.

              1. Rather, Obama was using the NEA to modify an existing emergency. One of 11 years. Again, was it an “Emergency” for such an existing situation, one that couldn’t be handled via normal legislation?

      2. My defense of what? I don’t support the NEA, I don’t think the wall is a good idea, I think the emergency declaration is a joke, and my overall position on immigration is pretty close to Ilya Somin’s. But I don’t change my standards based on what I want to happen. That’s what you have to do to pretend that the NEA is usually used in response to actual emergencies.

        According to the New York Times article Ilya Somin linked for support, “[t]he overwhelming majority of those instances were moves by presidents to impose sanctions on various foreign officials and groups ? freezing their assets and making it illegal for Americans to do business with them ? for wrongdoing like human rights violations, terrorism or transnational narcotics trafficking.” Most of those are not examples of sudden events that couldn’t wait on the ordinary political process, and most of those aren’t examples of emergencies affecting America.

        For example, the Maersk Alabama was hijacked on April 8, 2009, and Captain Phillips was rescued on April 12, 2009. Exactly one year after the rescue (which I’m sure was just a coincidence) Obama declared a national emergency related to the Somali pirates. What imminent threat were the Somali pirates posing that couldn’t wait? Why couldn’t Congress have acted in the intervening year?

      3. There are two common defenses of Trump in these comments:

        First, the NEA has been lazily applied in the past, often for inoffensive political goals and the slight uptick in bureaucratic efficiency a faux-emergency allows. Even granting that, it’s not the same as misappropriating billions of dollars against the legislative intent of Congress – to achieve a goal Congress rejected after a long & public debate. That’s very new ground which snark about the Sudanese doesn’t quite address.

        Second, it’s impossible to judge an emergency. This point has to be dear to the DJT defender, since you probably couldn’t design an “emergency” this factitious and absurd.

        (1) Illegal-cross border immigration is at (or near) a 45 year low, something even Trump admits.

        (2) His tales of bound maidens, terrorists, and drug traffickers are obvious lies.

        (3) “I didn’t need to do this, but I’d rather do it much faster.” Said at his own emergency declaration

        (4) Trump did nothing for two years, blaming this on being “a little new to the job”

        (5) His sudden advance in competence came overnight, after being criticized by Ann Coulter and Rush Limbaugh for accepting the pre-shutdown budget accord. In under twenty-four hours, Trump reversed himself 180 degrees and we suddenly had the longest shutdown in history & subsequent “emergency” – all because of ragging by radio clowns. Can you imagine a bigger farce?

        1. You’re making a mistake here. And that’s blaming things on “defending Trump”.

          Most of us don’t actively support Trump, and think the Emergency Declaration is a bad way to go about things. That being said, we look at the law in an impartial fashion, based on wording and past precedence for how its been legally used.

          And based on that, it’s actually reasonably well supported. Better than arguments that try to suddenly use a definition of emergency that’s different from how the law has been legally utilized in the past.

          1. Most of us don’t actively support Trump, and think the Emergency Declaration is a bad way to go about things. That being said
            we look at the law in an impartial fashion
            And based on that, it’s actually reasonably well supported

            Appeal to objectivity followed by unsupported opinion? Weak.

            Weird how many here (including you) that don’t support Trump end up advocating for whatever he does being legal over and over, oftentimes just appealing to their own judgement and not even engaging with the arguments in the comment you’re replying to.

            1. Weird how many here (including you) that don’t support Trump end up advocating for whatever he does being legal over and over, oftentimes just appealing to their own judgement and not even engaging with the arguments in the comment you’re replying to.

              Yes.

              The “I don’t like Trump but everything he does and says is wonderful, or at least better than anything Obama ever did or said,” argument is getting very old.

            2. “Appeal to objectivity”

              Yes, we all know that you don’t respect objectivity in any way, shape, or form, you fucking douchebag.

            3. Unsurprisingly, you make this about Trump, rather than the legalities. I’ve responded to this sort of “It’s not an emergency” argument repeatedly, through the comments.

              1. I’m not making it about Trump, you are. That’s your entire 6:56AM.

                Add in the general pattern of taking people to task for being nonobjective partisans, unlike your rational self, and you’re being ridiculous here.

                I’m certainly a partisan, the difference is that I don’t call people out just for disagreeing with me as ‘making it about Trump.’

                1. You seem to have failed to follow the thread. Notably the comment at 5:31 AM.

                  1. I see your comments below. They’re being taken to town as well. But here, your issue is more that you responded to a substantive comment with ‘you are wrong, which you would know were you an objective analyst, such as myself.’ Which is a crock – you analysis always falls in one direction. Just as mine falls in the other.

                    1. Sarcastro: “not even engaging with the arguments in the comment you’re replying to.”

                      Me: Responds to argument about time in directly previous comment

                      Sarcastro: Doesn’t engage with argument, changes direction of argument.

                    2. Sarcastro: “not even engaging with the arguments in the comment you’re replying to.”

                      Me: Responds to argument about time in directly previous comment

                      Sarcastro: Doesn’t engage with argument, changes direction of argument.

                2. You’re not one to be calling anyone out for anything.

          2. Isn’t Trump’s emergency “different from how the law has been legally utilized in the past”, to an obvious & sizable degree?

            (1) In all the little emergencies DJT defenders cite as precedence, there isn’t a single example of a NEA declaration used to resolve a political issue under contentious debate. All were uncontroversial and/or bipartisan. Trump’s declaration weaponizes the NEA as a partisan tool. Do you care?

            (2) No past emergencies come close to this declaration in scope or scale. In a list of dozens of emergency military construction projects posted by a DJT apologist, Trump’s declaration was larger in dollars than all combined. After using the law in a way no other president has, Trump then uses it at a scale never before seen. Any issue with that?

            (3) No past emergencies was used to flout the appropriation authority of Congress, with Congress refusing to fund a project and an emergency declared as an end-around. In this case the refusal of Congress followed an intense national debate. Isn’t that relevant?

            (4) Sorry, but Trump’s declaration is steeped in obvious lies and fraud – from it’s origin as a panicked reaction to political criticism, to the fantasy untruths used to justify it, to the ludicrous reasons he gave why this is necessary now, after his first two years as president. Relevant?

            Bonus question : If the House and Senate vote to revoke this emergency, do you believe that should influence a SCOUS ruling, even if Congress can’t override a veto?

            1. 1. Yes, it’s different from previous uses of the NEA. However, the fiscal appropriation is expressly written into the law. It’s also limited in scope to a subset of currently appropriated dollars.

              In terms of “weaponization”, it offers an opportunity for Congress to scale it back (As Congress has done before), as needed. Executive orders of other types have been previously used by the executive branch to “go around” Congress. This is strongly undesirable, and Congress should take back power from the Executive. The only way for this to occur is with a bipartisan Congress stripping back some authority from the Executive. That is more likely under the current administration. What is “worse” is for only one party to be able to “weaponize” executive orders and go around Congress for partisan purposes. Wouldn’t you agree?

              2. It’s fairly minor, in the scope of the Federal Budget. A few billion in appropriations for a wall from previously existing military construction funds.

              3. Past executive orders have been used to flout the will of Congress. This is another mechanism. All should be scaled back.

              4. You don’t agree with his opinion. Got it.

              Bonus: No. The SCOTUS should interpret the law, not actions Congress takes well after the law is passed, but that don’t actually get passed. For example, the House voted to repeal Obamacare upteen times. That didn’t play a role in how the SCOTUS interpreted lawsuits about Obamacare.

              1. I actually think we making progress. A quote from you above :

                “So, when I talk about precedence (and notably didn’t use the phrase “legal precedence”) I talk about how the law has been used in the past, and the conditions under which the law has been used. That matters, especially when attempting to determine what Congress meant when it passed the NEA.”

                Well, that’s dead in the water. You now admit Trump’s declaration is completely different from every instance the law has been used in the past. You now admit the conditions under which the law is being used by Trump are a world apart from any precedence. In fact, you admit he’s using the law to subvert a core principle of the separation of powers, the appropriation authority of Congress.

                Now, I if could only get you to admit that matters, especially when attempting to determine what Congress meant when it passed the NEA.

            2. “All were uncontroversial and/or bipartisan.”

              So why couldn’t Congress pass a law for the President to sign? Many, if not most, of the emergency declarations aren’t for “sudden” events. And they certainly no longer qualified as sudden events when the President decides whether or not to extend them every year (which also eliminates the argument about needing secrecy). The NEA is a joke, and this is a piss-poor application of it, but most of the “emergencies” have been as well.

              “No past emergencies come close to this declaration in scope or scale.”

              Many are broader in scope and scale, restricting what private individuals can do and subjecting them to criminal liability if the violate the restrictions put in place. That’s more serious than how the government wastes its money.

              1. (1) As I noted above, the law has been used lazily, as a shortcut to uncontroversial aims. More to the point, I’d welcome any example of a prior use of the NEA where an emergency declaration was made because the president lost a prolonged and public debate.

                (2) But what I really want to see are examples of freedom-crushing tyranny in past NEA emergencies. Please take a few minutes listing them though. I want to make a bag of popcorn for that show…….

                1. 1. If you let a law be used improperly when it suits your purposes, I don’t give a damn if you whine about it when it doesn’t. Congress passed a stupid law and is getting hoisted on their own petard. Fortunately, it appears that nothing in the law allows Trump to use eminent domain to acquire land for the wall, so at least Congress hasn’t screwed over the landowners along the border yet.

                  2. Apparently you haven’t spent much time reviewing the NEA emergencies if you aren’t aware that many of them prohibit trade with foreign nations or impose similar restrictions. Arguing from ignorance is a bad look.

                  1. (1) Your point is certainty strong. If a women acts carelessly sluttish, can she really object to being raped? I gave the moral force behind that argument some thought, then decided I couldn’t agree with it….

                    (2) Sanctions ?!? I made a bag of popcorn and your tyranny is sanctions?!? Trying to cover up for Trump’s maleficence shouldn’t require you to play the clown. That it does suggests you should find a new idol.

                    1. So, you’re squarely in the Sarcastr0 “dumb or dishonest” category, which one is it? Either way, you aren’t worth further engagement.

    5. Assuming Somin persuaded the court on the question of original declaration being dependent on actual emergency, all declarations would be vulnerable to challenge on assertions that the emergencies had passed or that an ongoing situation could not be an emergency.
      OTOH, there is NYC’s rent control/stabilization law, based on an emergency in effect since 1947.

      1. Where did you pull that one from?

        WTF do NYC’s rent laws have to with Trump’s declaration?

        1. It goes to the non-emergency nature of some “emergencies”, obviously.

  3. > All the Court requires is for the delegation to be constrained by an “intelligible principle.” But allowing the president to tap congressional powers by declaring an emergency for any reason he wants runs afoul of even that weak restriction. There can be no “intelligible principle” when the whole question is entirely left up to executive discretion.

    IANAL, but I think this seriously overestimats this. Even assuming the President doesn’t have authority to declare the Emergency as he sees fit (who else is going to be responsible for initial declaration?), with “review” being by Congress passing an Act (after INS v. Chadha), I can’t imagine the courts using anything but rational basis review here at all.

    The national emergency declaration on the border easily passes rational basis review. We have caravans, and active military deployment, overflowing shelters, and (arguably) a humanitarian crisis at times caused by large groups crossing over outside of POEs. Borders cut down illegal crossing in the areas they’re installed by 75-80%, which means CBP and deployed units can pour time and energy into other areas or otherwise more efficiently use resources.

    I don’t think there’s any way that that doesn’t pass muster, and there are certainly NE’s that have been declared with less emergent need, i.e.: https://wapo.st/2NlWIpd

    1. Unless SCOTUS wants to completely dismantle the NEA to begin with, the mechanics of moving funds around and the questions of what’s already been authorized are probably the best option for fighting this.

      For the record, I don’t think dismantling the NEA is appropriate. The NEA was put in to codify, restrict, and add due process around whatever “inherent” powers one might expect the Executive and C-in-C of the military to have, and put a review process *firmly* in place after the Presidential abuses of authority in the Watergate era. Striking it down and reverting to vague, common law, un-codified conceptualizations of emergency powers strikes me as a step backwards.

      Whether it’s a “true emergency” begs the question. It’s a “National Emergency”, one of many, and hardly the only use of a lever of control in the realm of national politics that may uses outside of what was originally envisioned for it. (filibusters and pro-forma sessions spring to mind.) This strikes me as a reductio ad Trump.

      1. Even the moving the funds around isn’t a good argument, as that’s codified into 10 U.S. Code ? 2808. The eminent domain argument may be best, but that hasn’t actually been used yet, so the point is currently moot.

      2. Wait, so a law put in place to constrain the President’s powers as commander in chief ends up allegedly giving him more power than he ever would have had before, and that is somehow an improvement? Because let’s be clear, the thing Trump is doing here would certainly not have been OK under his constitutional powers alone. That’s Youngstown territory.

        1. So Congress sets out to constrain the President’s powers, and in the process decides to only pretend to constrain them, for the usual reasons: They didn’t want to be on the hook if things turned out badly.

          They pretend to do one thing while doing its opposite all the time.

        2. Youngstown territory? I don’t think you want to go there.

          As Jackson said in his Youngstown concurrence:

          We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society.”

    2. Even assuming the President doesn’t have authority to declare the Emergency as he sees fit (who else is going to be responsible for initial declaration?

      No one says he isn’t the one with authority to declare an Emergency, but that doesn’t mean you can just declare anything you want an emergency.

      The national emergency declaration on the border easily passes rational basis review. We have caravans,

      Caravan? Weird, from watching the news I thought they just dispersed the moment the US midterms were over…

      and active military deployment,

      You can’t deploy the military for no good reason then point to the military deployment as justification for an emergency declaration.

      I don’t think there’s any way that that doesn’t pass muster, and there are certainly NE’s that have been declared with less emergent need

      You know what… I think you’ve finally convinced me.

      The US uninsured rate is dangerously high, and it’s gotten worse since Trump’s attempts to dismantle the ACA. People are literally dying from lack of proper health care… I think that’s an emergency.

      Therefore, President Elizabeth Warren is declaring a national emergency to extend Medicare to all Americans!

      1. No, the media just stopped wall to wall coverage of it once they could no longer use it as a cudgel against trump.

        Washington post link
        https://tinyurl.com/y3h7aqoa

        1. And what about Fox News?

          ? And now that the election is over, the “caravan” has largely vanished from the news cycle. “Late Show” host Stephen Colbert points out that the “caravan” was mentioned on “Fox & Friends” an average of 21 times an episode in the six days leading up to the election ? and then just once the day after.

      2. Section 4, Article IV of the Constitution is enough justification of an emergency.

        1. 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.

          You’re one of those ‘invasion by subsistence-based workers’ types, eh?

          1. “Military invasions” are a subset of “invasions”, Sarcastro. Suck it up: If people cross our border against our laws and policies, they’re “invading”.

            That they do so in large, organized groups, and violently assault border agents in the process is just the cherry on top, it wasn’t really necessary.

          2. Seems more reasonable to see an invasion in the caravans, than it is to see racism from a “smirk” from a still frame of a video.

      3. “You can’t deploy the military for no good reason then point to the military deployment as justification for an emergency declaration.”

        Well, there we go again: Like Somin, you think the President isn’t allowed to have a different opinion from you about when there’s a good reason to do something.

  4. Sorry, the “It’s not an emergency” argument is a very weak legal argument.

    The best case example here, is the list of past Emergencies. Not even counting the ones that predated the national emergency act (For example, how FDR used the 1917 “Trading with the Enemies” act to declare an emergency in 1933 to get a Bank Holiday passed)…many of the emergencies that that used the NEA are pretty…non-emergencies.

    For example, Reagan using it to “Continue export control regulations”…after a given law expired? Emergency? That couldn’t be foreseen?

    Or Bush I, who had an emergency to destroy chemical weapons…after signing an accord with USSR. Did that really need an “emergency” declaration?

    Or Clinton, who needed an “Emergency” to block assets and prohibit transactions with certain narcotics traffickers. Important? Absolutely. “Emergency”?

    Or Clinton (again), who used the NEA to…prohibit importing rough diamonds from Sierra Leone?

    There’s a lot of sanctions used for it as well. But past precedence seems to show that presidents have quite often used the NEA for situations which weren’t necessarily “Emergencies”…but for which standard, but fast, congressional action would’ve been sufficient.

    Now, if you want to rewrite the NEA with an act of Congress, that might be supported. But a legal challenge based on the “it’s not an emergency, in our opinion, so it should be illegal”….Not sure that’s going to fly.

    1. Emergency powers are implicit in light of recess appointments and the fact the AoC failed in part due to no executive. The Constitution explicitly gives Congress the power to call forth the militia of the several states to “repel invasions”. Furthermore Congress is given the power to “declare war”. The Constitution is clear?Congress must act first to give the executive authority to deal with this particular event.

      So in an actual emergency the president can take action without congressional approval but at a certain point the president must get congressional approval to proceed.

      1. Emergency powers are also explicit, as defined by the National Emergency Act, which codifies into law how “emergencies” work, and the powers that are authorized by them, including powers authorized by several laws.

        Congress has already authorized and approved the ability for the President to use military construction funds to build items when he declares a National Emergency. If Congress wants to change the law, that’s their right. But in the meantime, they’ve already approved the actions.

        1. Not if the President exceeds the reasonable meaning Congress placed on the word “Emergency” as used in the statute. Congress in no way authorised the president to use emergency powers for non-emergencies.

          1. Congress didn’t define what would qualify as an emergency. They left that discretion to the President. Moreover, past precedence has seen other presidents use the authority for “non-emergencies” like conflict diamond importation from Sierra Leone.

            If Congress wants to change the law, they have that right, and they should.

            1. You don’t think that’s overdelegation, then?

              1. What precisely was delegated though?

                The ability to use a limited pot of funds for military construction, as appropriate, in exceptional cases (as defined by the executive).

                We don’t expect Congress to approve every single acquisition, every notepad and paperclip to be purchased by the executive branch. Instead, we expect Congress to appropriate funds to broader acquisition purposes, and delegate the specific acquisitions to the executive branch.

                If Congress disapproves of how the money is spent, they can fix that through appropriate lawmaking.

                1. You’re arguing Congress long ago delegated to the President the ability to appropriate funds in a way directly against their wishes.

                  We don’t expect Congress to approve every single acquisition, every notepad and paperclip to be purchased by the executive branch.

                  This isn’t that.

                  If Congress disapproves of how the money is spent, they can fix that through appropriate lawmaking.
                  They did disprove this spending, hence this sham emergency. You know this. You’re now arguing the onus is on them to act when the President goes against them. You know that’s not going to happen. So your argument comes down to in effect if he has the Senate the President dictates spending as he wishes every time.

                  1. They did not disapprove of this spending. They failed to pass any law disapproving of this spending. Officially, they made no law, since the original NEA act, and the Military appropriations bill (for FY 2019), which put money in the military construction fund.

                    Just for fun, compare this with DACA, which Congress also failed to pass any law regarding, and which Obama used as an “end run” around Congress.

                    1. They “disapproved the spending” of monies for Wall by passing a budget that included no monies appropriated for the building of Wall. They don’t have to pass a law specifically saying there’s no money for Wall. They just have to appropriate no money for Wall.

              2. “overdelegation, then?”

                Oh, now over-delegation matters?

                The entire federal regulatory structure says hi.

        2. Constitution trumps legislation. Remember when you wanted the ACA declared unconstitutional? The ACA was lawfully passed legislation but you still believed it to be unconstitutional.

          1. Then you need to point out exactly what is non-constitutional about the actions. Exactly.

            Can Congress constitutionally appropriate money to the executive branch for military construction?

            Can Congress constitutionally appropriate money to the executive branch, to be utilized when the executive decides on certain conditions are applicable?

            Does Congress need to exactly describe each acquisition the executive can legally make with appropriated moneys, or can some discretion be left to the executive?

      2. Ok, fine, then you agree that the President can take action at the border to construct defenses now and what Congress decides to do or not do in the future is an open question. The more important thing to consider is that it is not a question for the courts, which is why this article is so deeply flawed in advocating for judicial intervention.

    2. Which of those was challenged in court and upheld?

  5. I disagree without Professor Somin here.

    Just as Congress is free to decorate its statute books with whatever hortatory advice it cares to give the public under the name “law,” the President is also free to declare whatever he wishes to declare. He can say whatever he wants. It’s a free country.

    And so long as it doesn’t purport to affect anyone else’s rights or duties, courts have no standing over such matters. Frankly, it’s no-one else’s business if he does. If people don’t like the things he declares, their recourse is to vote him out of office.

    I may be misunderstanding what Professor Somin is day ing here, but he seems to be saying that declaring an emergency is itself illegal. I would disagree. The President can use the bully pulpit to proclaim whatever he wants, whenever he wants, and he needs no special authorizing statute to do so.

    1. Sure, he can say whatever he wants, and this President does exactly that, with no regard at all for accuracy.

      The problem arises when he tries to take action that he claims is authorized by his BS.

      1. I may be misunderstanding Professor Simon here. If it comes to invoking specific emergency powers, like spending money or taking property, in a way that has a concrete effect on others’ rights, I’d generally agree with Professor Somin’s position that there is no emergency here authorizing use of those powers.

        But Professor Somin seems to be disclaiming this and going further, saying that a proclamation of an emergency is itself illegal. There I disagree. Professor Trump has as much right to use the bully pulpit to declare an inmigration emergency as President Johnson did to declare a “war” on poverty. Hyperbolic rhetoric is politics as usual, in both cases, and no more the courts’ business in one case than the other. Every president has a right to use hyperbolic rhetoric, issue declarations and proclamations, and so on, to help draw the public’s attention to their preferred issues and policy positions. If you don’t like it, your only recourse is to voice your disagreement and try to vote them out of office.

        1. So you claim that he can say whatever he likes, but that his actions are constrained. OK. I agree.

    2. the President is also free to declare whatever he wishes to declare. He can say whatever he wants. It’s a free country.

      He’s actually not free to say whatever he want’s in the role of President.

      And he’s even more constrained when it comes to giving orders, which is what an emergency declaration is.

      And so long as it doesn’t purport to affect anyone else’s rights or duties, courts have no standing over such matters.

      He’s spending money designated to disaster recovery. Those disaster victims have standing.

      He’s spending money that only congress is authorized to allocate. Congress has standing.

      He’s declaring eminent domain to take land. Those land owners have standing.

      I may be misunderstanding what Professor Somin is day ing here, but he seems to be saying that declaring an emergency is itself illegal.

      You are misunderstanding. There’s nothing wrong with declaring an emergency, but it has to be an actual emergency.

      1. The problem here is that the NEA specifies who gets to decide if there’s an actual emergency. It isn’t Somin, it isn’t a random 9th circuit judge, and it isn’t you. It’s the President.

        1. +100

          As designed by the law passed by Congress.

          1. Which is why the main thrust of the argument is against the implementation. Is the judicial branch empowered to ride shotgun on the pure value judgements of other branches?

            In the travel ban stuff, at least one decision went beyond constitutional arguments and included, “and I, the judge, don’t think the president’s judgement is all that good, either.”

            It may not be, but that’s not his job.

        2. It’s also the English language. The purpose of the NEA isn’t for the President to declare which things are emergencies, it’s to decide which emergencies require a government action that can be accomplished via the NEA.

          And “a random 9th circuit judge” is exactly who gets to decide if there’s a dispute, and if you disagree with their decision then there’s 9 SCOTUS judges who get the final say.

          1. If “it’s the English language” were the sort of argument the Supreme court found persuasive, SSM wouldn’t have been legalized across the country by judicial fiat, because “marriage” didn’t mean that. Opposite sex was part of the meaning of the word.

            The law says the President gets to decide when there’s an emergency, and he just did.

            1. That had nothing to do with “the English language”. It was about granting a right to one group and not another.

              I forgot the far right was still flailing at that particular wind mill.

  6. Seriously, do you expect, “It’s illegal for the President to disagree with me about when there’s an emergency.” to persuade anybody at all?

    1. I suppose that’s one reason why he wrote over 24 paragraphs on the issue, instead of the simple sentence you’re pretending he wrote.

      1. Look, saying it in 24 paragraphs doesn’t change the fact that that’s his argument:

        1. You appear to be confused as to what constitutes a ‘fact.’

          Factually, not once does Somin proclaim that it’s illegal for the President to disagree with him. Factually, his argument revolves around the plain meaning of the word ’emergency,’ as well as the legal authorities Trump lacks to re-appropriate funds at his (Trump’s) whim.

          1. So, in this iteration of the argument that “the President has acted illegally,” there is no sudden crisis serious enough to justify the declaration of an emergency. Is it really within the institutional competence of a federal court to assess the merits of US defenses at the national border and to determine what foreign threats are sudden and serious enough to justify the Commander in Chief in protecting the US? And this points to another weakness in the argument regarding the perils of setting a dangerous precedent. The author here simply refuses to acknowledge the specific context of this emergency. It concerns the defense of the US border. This is not a circumstance that supports or would justify future Presidents in doing anything they wanted under the pretext of a national emergency.

            1. Is it really within the institutional competence of a federal court to assess the merits of US defenses at the national border and to determine what foreign threats are sudden and serious enough to justify the Commander in Chief in protecting the US?

              If there were a foreign threat you might have a point. It is certainly reasonable for the court to ask what the threat is, and when it turns out to be a bunch of blatant lies to say so.

              And this points to another weakness in the argument regarding the perils of setting a dangerous precedent. The author here simply refuses to acknowledge the specific context of this emergency. It concerns the defense of the US border. .

              That’s ridiculous. There no armies of drug traffickers, terrorists, human traffickers, or other villains attacking across the border. There are only lies, bigotry, and attempts to rile up the Trump base.

              You guys live in some alternate reality.

              1. “If there were a foreign threat you might have a point.”

                Well, then he has a point. Because there IS a foreign threat, you just don’t think it’s big enough, or urgent enough, or unsympathetic enough, to merit doing anything about.

              2. If this is the best opponents of the declaration can do, I look forward to their impending humiliation in court. As noted above, the federal courts lack authority to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy should be. Is not possible to just honestly disagree with the President rather than arguing that a major policy question must be reviewed and overturned by a federal court?

              3. As usual, be careful what you wish for, you just might get it. Which in this case is judges overriding the value judgements of the political branches in their specific constitutional powers.

                Is a judge overriding a veto that far beyond?

          2. What he proclaims is that it’s illegal for the President to declare there is an emergency when there “isn’t” one, which is to say, when he disagrees with the President about whether an emergency exists.

            If only the National Emergency Act specified who gets to decide if an emergency exists…

  7. You’re a miserable piece of traitorous excrement, professor

    1. Actually advocating unconstitutional actions seems more “traitorous”.

      1. You mean like when he advocated for dishonesty interpreting the 14th Amendment to create a “right” to anal-sex based “marriages?”

        1. Lol, if anything gay marriage reduces the rates of homosexual activity.

          1. You don’t know many gay men, do you?

        2. Oh here we go again! I ask you, ARWP — do you /really/ think the government has a place in the bedroom? Even my parents — conservative, evangelical Christians in a long-ago time — opposed that.

          1. If we’re going to pay for their HIV drugs, then yes.

            1. Are you ready to ban smoking because “we pay for” lung cancer treatment?

              1. Yep!

              2. It’s actually a basic principle of libertarian political philosophy, that the only way you can expect to get to make your own choices, is if you bear the cost of them yourself. That’s one of the reasons libertarians oppose socializing costs: It will always involve socializing choices, sooner or later.

    2. You’re a jackass, a bigot, and an idiot, AWRP.

      Your comments here are asinine, and your contribution to discussions is negative.

      1. And you’re a homosexual apologist pervert.

  8. “It is certainly possible that some previous emergency declarations were legally dubious. Trump is far from the first president to abuse his authority. But the fact that some of his predecessors may have acted illegally is no reason to let Trump get away with it, too. To the contrary, it is all the more reason to crack down on such abuses of power, so they will not be repeated.”

    Except that WON’T be the case, and you know it. They’ll be repeated the moment a Demoncrap gets into office

  9. We’ll add on another part, regarding authority to spend money.

    10 U.S. Code ? 2808 pretty clearly allows Trump to use military construction funds, in the event of a declared emergency, to undertake military construction projects, that haven’t otherwise been authorized by law. Literally, here’s the text.

    “In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law ”

    Now, you might argue, a border wall isn’t a “Military construction project”. That’s…not the best argument in the world. Historically speaking, a wall on a foreign border is almost the definition of a military construction project.

    1. Congress can’t legislate away its constitutional responsibilities. The constitution clearly gives Congress the power to call forth the militia to repel invasions as well as giving Congress the power to declare war. In a situation like Pearl Harbor the president has implied emergency powers but the powers are limited to the next time Congress can convene.

      1. Pretty much the entire administrative state is an example of Congress legislating away its constitutional responsibilities.

        1. Not to hear the Supreme Court tell it.

          1. People pay fines and go to jail for words out of the mouth of the President rather than Congress.

            The ability to pass law by decree is a primary power of dictatorships.

          2. So why would they start caring now?

      2. Congress has not legislated away its constitutional responsibilities. It has however delegated to the President clear authority power under the NEA to declare a national emergency. And the President in his own right also has a bit more then just “implied emergency powers” as Commander in Chief to defend the border. I strongly suspect that the federal courts will ultimately conclude that it is not their proper constitutional role to second guess the judgment of the Commander in Chief as to whether the circumstances at the border are sudden and serious enough to warrant a declaration of emergency.

      3. Congress has not legislated away its constitutional responsibilities. It has however delegated to the President clear authority power under the NEA to declare a national emergency. And the President in his own right also has a bit more then just “implied emergency powers” as Commander in Chief to defend the border. I strongly suspect that the federal courts will ultimately conclude that it is not their proper constitutional role to second guess the judgment of the Commander in Chief as to whether the circumstances at the border are sudden and serious enough to warrant a declaration of emergency.

    2. Aside from the circular logic, there’s a serious problem with your argument.

      Specifically, your dishonesty in quoting the statute and leaving out the qualifier that destroys your theory.

      “not otherwise authorized by law that are necessary to support such use of the armed forces.”

      The military is needed, because he wants to build a wall, to support the troops building the wall. THAT is the actual argument you have to put forth to pretend that statute is relevant.

      Don’t be a dishonest dick.

      1. Don’t be a dishonest dick.

        You are talking to a Trumpist. What do you expect?

      2. Implicit the military construction is to support the use of the armed forces. And what are the armed forces for, if not for supporting the defense of the national border? Don’t we currently have US troops on the border? Wouldn’t a wall support their mission there?

        1. It all boils down to the fact that most of Trump’s opponents here WANT continued illegal immigration. (Or, like Somin, want “illegal immigration” to simply be abolished as a concept.) That, in their minds, makes illegal immigration automatically a non-emergency, and stopping it an illegitimate use of military force.

          Not just a matter of Trump not being able to legitimately do this, (Though TDS makes this extra-illegitimate.) but of NOBODY being able to legitimately do it. Congress could by a supermajority vote decide to close the border, pass a declaration of war and explicit wall funding, and Somin would deny it was constitutional, because he starts from border security being off limits, and reasons from there.

          Most of the anti-wall folks are not quite so extreme, in the sense that, if illegal immigration became disadvantageous to the Democratic party, they’d be fine about stopping it. But until the Democratic party decides it doesn’t want more illegals here, they’re still not going to admit that anything can legally be done about it.

          Now, you can reject this viewpoint, see stopping illegal border crossings as a valid emergency and one of the few legitimate purposes of the military, and still think the NEA constitutionally illegitimate on non-delegation grounds. That’s my view.

          I just refuse to agree to more TrumpLaw. You don’t like the NEA? Fine, repeal it. Don’t just take that power away from Trump alone.

          1. It all boils down to the fact that most of Trump’s opponents here WANT continued illegal immigration.

            Yes, the key to a good counterargument is spending paragraphs upon paragraphs decrying the bad faith of the other side, and explaining their real agenda.

            1. the key to a good counterargument is spending paragraphs upon paragraphs decrying the bad faith of the other side, and explaining their real agenda.

              Standard Bellmore, sarcastro.

              He is so absolutely certain he is right about everything that he can’t even imagine that someone could disagree in good faith. This is what drives his conspiracy rants and his attribution of nefarious purpose to those who disagree.

            2. Give me a f*cking break. Mass mestizo immigration (and to some extent, Indian/Chinese as well) has turned solid conservative states like Arizona, California, New Mexico, and Virginia, among others, from solidly red to solidly blue. That’s the reason you people want them here, and will never admit the truth, that America was built to be a white ethnostate.

            3. If people obstruct every way to solve a problem, eventually you have to conclude they want the problem.

              You don’t want a wall.

              You don’t want more ICE.

              You don’t want enough detention facilities or immigration judges to handle the number of people the ICE we have now are catching.

              You don’t want asylum applications looked at skeptically.

              What DO you want done to stop illegal immigration? E-Verify? Bounties for locating illegal aliens? Requiring states to warn ICE before releasing criminal illegal aliens from custody?

              And Somin is explicit: he doesn’t want border enforcement AT ALL. He denies that it’s a legitimate power of the government.

              1. If you keep insisting something is so objectively a problem no one can deny it, eventually you need to start inventing conspiratorial motives for those who disagree with you.

                1. Which is it? Not a problem, or just don’t like the solution?

        2. Don’t we currently have US troops on the border? Wouldn’t a wall support their mission there?

          Absurd. Trump pointlessly send troops to the border, and then uses their presence there as justification for his emergency.

          And you buy it. Stay in your armchair, counselor. Your logic won’t get far out in the world.

          1. It’s like I said: You consider any efforts to stop illegal immigration pointless, because you WANT illegal immigration.

            1. I don’t think they want illegal immigration specifically. They just want as much third world immigration of unskilled people as it takes to give them permanent control. How that immigration occurs is irrelevant to them.

              1. No, the illegals actually have some benefits for the left that legal immigrants wouldn’t. For example, they given a number of ‘blue’ states added clout at apportionment, but still can’t vote, so they just give extra votes to the Democrats without any risk that they themselves might vote the wrong way on some issues.

                And you’d be hard put politically to justify removing the parts of the immigration code that require legal immigrants to be English literate and demonstrably unlikely to become public charges; Legal immigrants tend to have higher incomes than native Americans. That messes with their push to increase income inequality. (Poor people can have their votes bought cheaply, the wealthy are good for taxes and kickbacks, but the left has no use for the people in between.)

                So, yes, they specifically do want them to be illegal.

                1. I would agree with you, if the prohibition on being English literate and demonstrating that he wouldn’t become a public charge were enforced, but they’re not. In fact, Trump was called “cruel” for calling that to be enforced.

                2. I am for open borders, but I agree with this.

                  Additionally, the left sees the children of illegals being raised under oppression, as more reliable voters, than the children of legal immigrants.

  10. Reasoned arguments have no place in political discourse. The xenophobes want a wall.

    1. Xenophobia is irrational fear. Not wanting your country overrun by semi-retarded Hispanics is not irrational.

  11. Ilya has a point, but there is for me a big point of disagreement here.

    “The Situation at the Border is Not a Sudden Crisis – and therefore Cannot be Declared a National Emergency”

    I think it ought to be pointed out that this is not a legal argument, this is a political argument. I would counter that contrary to the wishes of the electorate, our ruling class going back decades have ignored this problem and it has pushed us politically further into an unsustainable welfare state because of it. Time and neglect has augmented the crisis, not invalidated it. Your appeal to numbers is based in the ephemeral.

    Otherwise, yes, Presidents shouldn’t be able to announce a national emergency in response to not getting Congress to give him what he wants.

    1. “I think it ought to be pointed out that this is not a legal argument, this is a political argument. I would counter that contrary to the wishes of the electorate…….”

      1. The people don’t want a wall, by a sizable margin per every poll
      2. The people along areas to be affected by the wall really don’t want it.
      3. We just had an election in which the wall was heavily featured; the GOP lost.
      4. Our elected representatives had a lengthy & very public debate on the wall & refused to fund it.
      5. Elected representatives of areas to be affected by the wall are against it.

      I think you’d be better off working the “emergency” angle, however phony, than bringing up the “wishes of the electorate”.

      1. 1. Absolutely wrong.
        2. The people at those borders most certainly do want some kind of wall. The fact that those districts have been gerrymandered to have Dem reps doesn’t change that.
        3. The wall wasn’t a political point in any GOP candidate’s campaign who lost, and I defy you to find me one that fits that nonsensical position.
        4. True, but irrelevant. This is a national emergency, and the fact that you and Simon are too biased to see that isn’t an excuse for ignoring it.
        5. See note 3.

        Continue to live in your gated, protected community, but some of us are vulnerable to crime and policies that idiotic leftists have put in place. Don’t be surprised when some of us have had it and vote for people like Trump.

        1. 1. Your feelings don’t trump published polls
          2. You think Arizona and Texas are gerrymandered for Dems?
          3. It’s also a sign of political winds when no one runs on the wall.
          4. It wasn’t a national emergency until Congress said no. By your logic Trump should have done this on day 1. That he did not indicates the real emergency is separation of powers existing.
          5. You can’t just invoke gerrymandering as the general proposition that reps don’t support their districts.

          1. 1. Straw man. While the polling for the Wall is weak, the idea of ignoring scofflaw immigration is equally weak. US Citizens do not like the idea of illegal immigration going ignored.

            2. Where is your polling data for this, specifically, and more importantly why does this matter?

            3. Ignoring that this election can be better explained by the party in power usually losing ground in midterms.

            4. Yes I know. But the unpopularity of illegal immigration does depend on the popularity of the wall.

            5. Really? Who? And more importantly, since when all of a sudden is nation border security only a local issue?

            1. 1. Not a strawman, since a wall is what grb was explicitly talking about. Also, no one is arguing against immigration policies generally, just the wall.

              2. The burden is on the guy arguing that the Congressional representatives are not representative.

              3. This was rather bigger than the usual midterm slump. Also, regardless of the final vote no one ran on the wall! politicians may suck, but they can gauge national winds.

              4. this is nonresponsive to this point.

              5. Read the thread I responded to, chied. I Callahan is the one who brought up all that anti-Republic gerrymandering at the border.

        2. Continue to live in your gated, protected community, but some of us are vulnerable to crime and policies that idiotic leftists have put in place.

      2. “I think you’d be better off working the “emergency” angle, however phony, than bringing up the “wishes of the electorate”.”

        I think you would be better off working an angle of managing to find some honest reading and comprehension skills.

        1. Looks like he read your comment to me.

  12. I haven’t read the emergency legislation, but in general I would prefer that it only give emergency powers to the President in the interval between the beginning of the emergency and the a reasonable time after the convening of Congress – thus emphasizing that purely Presidential actions are to be limited in time until Congress can get around to making suitable legislation. The only exception is if the emergency is so great Congress can’t convene, in which case the emergency regulations should stay in effect until Congress can get together.

    I would guess the emergency legislation is broader than that.

  13. I remember being told that the travel ban was unconstitutional too. It took the Supreme Court to remind (some) people what “rational basis” means.

    If the courts want to overturn or severely limit the National Emergencies Act, that would probably be good. I doubt the courts will ultimately say “it wasn’t emergent enough” and impose some arbitrary test for the required rapid onset of situations.

    1. The professor’s personal views are blinding him to what the law actually says.

    2. I remember being told that the travel ban was unconstitutional too. It took the Supreme Court to remind (some) people what “rational basis” means.

      5-4 means it sure was an open question. And before you just deny that liberal justices count, see this past week for what an open-and-shut 9-0 decision looks like.

      1. Liberal justices decide and then, as an afterthought, look for reasons their decision can arguably be supported. The four of them are usually reliable votes for whatever left-of-center politicians prefer.

        1. Oh come on.
          The conservative justices are usually reliable votes for whatever right-of-center politicians prefer, that’s not proof they’re not using legal reasoning.

          Your side doesn’t have a monopoly on good faith.

          1. Liberal judges are always reliable votes for liberal positions, not usually.

            You got medicaid in the Obamacare case and that is it.

            How many abortion restrictions of any type has a liberal justice upheld since Roe?

  14. Can someone help me out here, I’m asking because I genuinely don’t know:

    Some states are suing the administration in lower federal courts. Can the administration have these cases removed into the Supreme Court because states are parties? If this could be done, it would certainly make for a quicker decision.

    1. Especially given that there are enough judges in the lower courts appointed by Klinton and Obongo to rule against Trump because “but Trump!”

  15. 1. Abe Lincoln would be have been on very weak ground by this standard with multiple edicts that he sent down as POTUS.
    2. There is quite the divide between normal people and attorneys and that isn’t a good thing.

    1. Lincoln’s actions during the Civil War were indeed often flagrantly unconstitutional.

      There is quite the divide between normal people and attorneys and that isn’t a good thing. Yeah, experts disagreeing with non-experts is going to be the death of America.

      1. Which “experts?” The ones that believe that a) gender is fluid and that a man who cuts off his schlong is now a woman, b) its indisputable that man made CO2 causes climate change, and c) that all races are of equal average intelligence? Those experts?

  16. The right answer is that the commitment of Ready Reserves and construction statutes are limited to support construction. Mark it, move on.

    That said, nondelegation might be a canard. Faithful execution of a specific power available in emergencies doesn’t necessarily imply an Article I basis for the power to determine an emergency.

    Presentment is trickier. 50/1621 (non-enacted title, so session law as amended) serves as a gatekeeper to the hundred or so trap-doors of emergency powers in the Code. (First question — did it necessarily amend all of those provisions?) Concurrent resolution revocation then hits the Chada problem. But say the Congress passes a subsidy for orange growers. President awards it to apple growers, calling their fruits oranges. The next Congress then passes a joint resolution saying that apples aren’t oranges. No discretion to call an apple an orange was ever delegated. The trap-doors antedate the gatekeeper statute, so presumably there’s some inherent Article II execution power so that the laws don’t become a suicide pact. The concurrent resolution simply becomes a catechism for Art. II faithful execution.

    1. Emergency vs non-emergency is more of a line drawing exercise, and the law explicitly delegated drawing that line to the President.

      Apple vs Orange is a binary choice. So, lousy analogy.

      1. “Emergency vs non-emergency is more of a line drawing exercise, and the law explicitly delegated drawing that line to the President.”

        If you tell someone that they can have a soda unless it’s after six, in which case they can have a beer, you’re not necessarily delegating to them your power to decide the time of day. The point is that the power to invoke the many emergency provisions in the code might start in Article II faithful execution, not Article I.

        “Apple vs Orange is a binary choice. So, lousy analogy.”

        Bananas.

        1. Again, you’re taking a line drawing exercise, and trying to turn it into an objective binary choice.

          If the NEA set specific numerical criteria for what qualified as an emergency, (More than 50,000 illegal immigrants per year, or caravans exceeding 75,000 people storming the border, maybe.) you’d have a point.

          It didn’t. It left it up to the President to decide if there was an emergency.

          1. It’s complicated, I agree, but here’s how the argument would go. The law is binary, emergency versus non-emergency. The President declares which of the two it will be. This choice, though, isn’t an inherently a Congressional power delegated according to an articulable principle. Unlike setting the rules for deporting aliens, for example.

            It’s simply a logic gate in the law. If the country is in a state of emergency, X; if not, then Y. Example — there was formerly a provision in the code that certain DC college campus land would revert to the government for army housing if the President declared a military emergency. Congress wasn’t delegating to the Commander in Chief the choice of whether to declare a military emergency. But if the President nationalized the campus lands to tailgate before Army/Navy, a joint resolution might make clear the sense of the Congress as to the legitimacy of the emergency.

            And if the decision to declare an emergency is Article II faithful execution, the joint resolution avoids Chadha, as there was no law vesting the discretion in the President. Just a thought. Cheers.

  17. If our constitution lives then so do our laws — if it feels right, do it!

  18. Should be part of the briefing for every new congressman. Never grant the president permanent powers through legislation because restraining or revoking those powers in the future will be vetoed by the president who does not wish to weaken his position.
    Write the legislation with some sort of congressional revocation clause within, or an expiration date altogether might be one way to grant executive emergency powers.

    1. Expiration date. The “revocation clause” would run into the same presentment clause issue that the NEA did.

  19. Somin: “Its illegal because Trump rules.”

    1. Pretty much…

    2. Somin would prefer Clinton. Strange for a libertarian but open borders uber alles I guess.

  20. “It makes much more sense to interpret the National Emergencies Act as only allowing an emergency declaration in a situation where an emergency actually exists – defined as some sudden crisis that cannot be addressed swiftly enough through ordinary political processes. By that interpretation, the situation at the border doesn’t even come close to qualifying.”

    My assessment is that the unregulated influx of people across our southern border, illegally, IS an emergency. No other country that I am aware of would allow this. (In case I am wrong about that past statement, please let me know which countries allow unfettered, unregulated immigration.)

    It need not be sudden in onset to remain an emergency, and it is abundantly obvious that this cannot be addressed through ordinary political processes. It therefore qualifies as an emergency.

  21. Why Ilya Is Wong About Trump’s Emergency Declaration

    1. It really IS an emergency.
    2. It cannot be addressed through ordinary political processes.

    1. Of course it can be addressed through ordinary political processes. That’s exactly what Trump and Congress were trying to do.

      The fact that Congress didn’t come up with the answer Trump wanted doesn’t mean it can’t be dealt with legislatively, it means it wasn’t dealt with the way Trump wanted.

      The very fact that there was a debate in Congress on the matter and that Trump waited for that debate to end before acting absolutely proves it can be dealt with legislatively.

      1. I’ll agree with you on this: It isn’t that the problem can’t be dealt with legislatively, it’s that the legislature actively doesn’t want the problem dealt with. The Democrats want more illegals to help boost apportionment in Democratic states, and accelerate demographic change, and both parties are bought and paid for by business interests that like having plenty of illegals around to drive down wages.

        The legislature’s position on this is sufficiently unpopular that they can’t come out and say that, though, which is why the immigration laws they don’t want enforced are still on the books, and they’ve never explicitly forbidden securing the border. They just routinely make sure that border enforcement is ineffective by denying it enough resources.

        So, if Trump is willing to piss them off, they’ve left the door open to do something like this, because closing it tight would be just too obviously what it would be: Affirmatively favoring the nation being flooded with illegal aliens.

        1. By your own admission, the elected representatives don’t want this.

          Which is not, in a republic, a justification for the executive to just do it anyway.

          1. By my own admission, the elected representatives are actively refusing to represent the voters on this issue. At some point that sort of behavior justifies anything up to and including violent revolution.

            Using powers that the legislature actually gave the President in a way that frustrates the legislature’s unspoken intent? Piddling in that context.

      2. The fact that the border remains open and unregulated crossings persist, while the congress refuses to act is an existence proof that this problem, the emergency as defined by the POTUS, cannot be addressed through the political process. “Addressed” means resolved.

        1. “Addressed” means resolved.”

          Of course. But Trump bad!

  22. Lying Ilya.

    He states “That’s the conventional wisdom among most legal scholars and commentators.” The phrase “among most legal scholars and commentators” is a hyperlink to a Vox article where 11 “scholars and commentators” were asked, 10 of whom are law professors.

    That’s like asking Michael Mann and ten of his best friends if climate change is real, man-made and dangerous, and then saying “that’s the conventional wisdom among most climate scientists and commentators.” 97% consensus, and all of that nonsense.

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  24. Somin’s primary problem is that Trump has managed to shift the Overton Window such that the border problem, a festering wound for decades that most people wanted fixed (even leftists), now constitutes an emergency.

    Can we do the debt and deficit next?

    1. +1000

    2. By your definition, Trump could start executing liberals and that’d just be shifting the Overton Window such that political violence is suddenly an option.

      1. Your causality arrow is reversed in your hypothetical Sarc. Just because Trump does something, it doesn’t meant it’s politically acceptable. In fact, quite the opposite. Trump does stuff that is normal and suddenly it’s considered egregious, an example is the child separation policy that Obama and other presidents did. Instead, he’s convinced people *before* he acted it was acceptable.

        1. Instead, he’s convinced people *before* he acted it was acceptable

          You’re assuming this conclusion. Just because Trump does it and people defend it doesn’t mean it’s become acceptable. Especially around here, people seem to defend whatever Trump does. (And, naturally, the opposite as well).

          1. Nope, you’re using faulty deductive logic to leap your conclusion. You cannot assume that just because Trump does something, that it will gain political support from his supporters (especially with your silly example of political violence, a reductio ad absurdum fallacy at that).

            Did you forget that Trump was elected on his promise to control the border? Did you not know that 30 seconds of Internet research will find you countless examples of Democrats pushing for strong measures related to border security, up to and including a barrier?

            All Trump did was shift public opinion enough that it was acceptable to *actually act*, rather than talk, about border security. Note, I’m not saying the emergency declaration was a good thing, just that it is now within the Overton Window to make the move that he did. Presidential power, ultimately, is just the power of persuasion, despite all the trappings of the office.

            So again, Somin’s complaint is essentially that he doesn’t think it’s an emergency, whereas enough of the public does, such that Trump can declare it an emergency.

            1. I have yet to find something Trump has done that the usual suspects on in this comentariat don’t support. So in terms of actual circumstances, I have bad news for you about the principled steadfastedness of your compatriots.

              Not to mention that on this blog where you regularly see the argument that institutions from the media to the entire judiciary only take a given position because Trump’s on the other side. If you’ve ever talked about Trump judges or Trump Law, sit right back down.

              And if anything polls show Trump’s ends-justify-the-means stance has made people less likely to support a wall, so your entire premise is built on misunderstanding your own position as that of the general public.

              enough of the public does, such that Trump can declare it an emergency
              The entire issue is that the public isn’t getting a say. And now people are arguing the judiciary doesn’t either. Applying the ‘critical mass can be less than a majority’ logic takes you to some pretty fascistic places.

              1. “I have yet to find something Trump has done that the usual suspects on in this comentariat don’t support.”

                As Republican Presidents go, he’s actually been fairly good at not giving his base the finger and then going off and doing the opposite of what he ran on doing. This doesn’t make us mindless zombies, it makes him unusually reliable.

                Now, do I think that’s because he’s on our side on everything? Not at all. But he knows he could commit sepuku in the Rose garden and Democrats would just complain about his getting blood and gore all over the place; He’s lost the left, and irrevocably.

                So he knows he has no choice but to “stick with the one what brung him”. That makes him somewhat smarter than your average President, who’s in the same exactly position, but doesn’t have the sense to realize it.

              2. Another mistake you’re making is thinking that the commentariat here is a representative sample of Trump support. It’s not. And lets see those polls, a lot changes depending on how the question is asked. Trump’s approval # is solid enough that he moved on what he was elected on. And another mistake is thinking that the public is supposed to have a say in between election cycles. They really don’t.

                Ultimately, you’re continuing to make up reasons for this slippery slope you’ve made up in your own mind. Trump does X, Trump supporters agree, therefore if Trump would do BADTHINGX and Trump supporters would agree.

  25. Congress should vote on a wall but with one stipulation. No one who represents a district with more than 20% Hispanics is allowed to vote. A biased judge should recuse himself. So should they.

    1. Where is the constitutional authority to do such a thing?

      1. I don’t really care at this point. These people were never supposed to be here, and the founders did not intend for them to form a racial voting bloc.

        1. Your proposed cure is worse than the disease. All you need to do is severely limit immigration for a generation or two, and you wouldn’t need extra constitutional remedies that literally no one supports.

          And you’re imputing the Founder’s motivations based on what? At most, you could say that racial voting blocks meet Madison’s definition of “faction” from Federalist 10. “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”

          They gave us a Republic, and we may not be able to keep it.

          1. At this point we could shut off immigration, legal and illegal, for a couple generations, and we’d still have enclaves where people spoke Spanish rather than English, and a screwed up society. We’ve passed the point of no return, unfortunately, we let the situation go on too long. The America of my childhood is dead, and it won’t be coming back.

            We’re just fighting now over the exact nature of what’s replacing it. A screwed up kleptocracy with enclaves of 3rd world poverty? (The optimistic scenario.) Will the Reconquista succeed? Will things get so horrible we get civil war and genocide?

            But bringing back America as it was is already off the table.

            1. No, not really. The girls will intermarry, like they always do and have always done, and that will be the end of your problem….provided the supply of them doesn’t keep on coming.

              And there has always been enclaves of poverty, and will always be enclaves of poverty.

              1. You’re discounting the permanent IQ deficit.

                1. And you’re discounting female hypergamy which selects on competency and fitness and IQ. The prettiest girls will breed with the high status men, which are mostly whites or asians.

                  IQ deficit = larger underclass for a generation, maybe. Not such a problem as out of wedlock births, if you think about it.

          2. I don’t agree. As Brett stated, we now have enough low IQ third worlders here, that even with immigration shut off for good, they have enough power to irreversibly turn us into a full fledged leftist nation. And this is even more true when you consider their high birth rate, that we subsidize.

            At this point, the only solutions are a) mass extermination and b) forcible sterilization of low IQ non-whites. At this point, I don’t support a), so b) is the best solution.

            1. b) is never going to happen, even in your fevered dreams.

              1. Not now, it won’t. Do you think Hitler’s rise to power could have been anticipated in 1923?

                1. Yes, actually, it could have been because dictators rise and fall all the time, often during periods of instability when the people are clamoring for order. What you couldn’t predict, is the implementation of the Final Solution, but again, that was just the modern factory industrialized scientific method of the history of antisemitic killings.

                  1. And you don’t think instability is in our future, given our demographic time bomb and debt problem?

                    1. Not as much as you think. The Social Security retirement age raised to 74 and Medicare to 70 would solve most of our fiscal problem, assuming the money doesn’t get spend on something else stupid. In the 1980s raising the retirement age saved the scheme for another generation, it’s not like we can’t do it again.

                      And what do you mean by demographic time bomb? Japan is doing fine with an aging society, even very well, as they adapt. So could we. By time bomb do you mean white minority status? That’s only a problem if whites continue to *not* block vote.

                    2. Yes, I mean with white minority status, and America becoming a nation of resentful non-whites with low abilities who will soon have enough political power to demand non-stop infusions of white money. What good does white block voting do if they’re 45% of the population? Do you want a Balkanized America? Do you want a civil war where a white ethnostate splits up? Do you want mass extermination? What is your desired result?

                    3. False dichotomy after false dichotomy.

                      We’re a long…..long….long way from South Africa, which hasn’t even hit mass extermination levels yet for its white minority.

                    4. LOL okay.

  26. The courts interpret legislation, that’s part of their job. Congress wouldn’t use the term emergency if it were so infinitely malleable as to be meaningless.

    1. Right and liberal judges will rubber stamp whatever you want. If, during the AIDS crisis of the 1980s, had a president declared that the deaths of “men” who can’t stop ejaculating into other men’s colons was an emergency, would you have been onboard with spending tens of billions to remediate the emergency?

    2. “Congress wouldn’t use the term emergency if it were so infinitely malleable as to be meaningless.”

      Congress never makes mistakes!

      Congress thought the legislative veto would stop things it disliked. Oops

      Congress was always going to be Democratic, it had been for all but 4 years since 1930 and it was already 20 years since the last time. Oops again.

  27. If an INVASION of 20 to 40 MILLION illegals is not an emergency, then nothing is an emergency. Caravans of 10,000 each coming to our borders right now, and if an emergency declaration is not warranted and not allowed then we don’t have borders and don’t have a country. At least 5 MILLION more in South America want to come here illegally and if Illya and the democrats have their way they will start packing for the trip in the next few months.

    1. We should line the border with Claymores. If a few cucarachas get their legs blown off, the rest of the muchachos will realize the error in trying to invade.

      1. Right?.and lose all moral standing because you kill some kid or pregnant woman looking to pop out an anchor baby.

        Look, did you get wounded in some way by an illegal immigrant? Maybe someone who had been deported five times and was driving drunk killed someone you know. Your emotionalism on this topic is overwrought, and only exceeded by when you bring up gay marriage. It’s kinda sad really.

        1. If the “kid” or pregnant woman is an invader, too damn bad.

          And no, I didn’t. It’s just that my ancestors did not fight for this country to let it become overrun by savage Mayans and Aztecs from Central America.

        2. Truthfully, if you’re not upset and angry by what’s happening to your country, you’re not paying attention.

          Link

          Do you really look at these “migrants” and see potential Americans? I see savage, uneducated Indians.

          1. So you’re a sociopath then. Should we take every non-lethal measure possible to make that woman and kid stay out, sure, but there is something wrong with you when you look at a kid and a woman (no matter the race or ethnicity) and think that they should perhaps die via a claymore mine for crossing the border.

            1. More like I’m a patriot, who values the lives of my own people more than aliens. It’s a zero sum game.

              1. You can be a patriot and a sociopath, or neither, they are not mutually exclusive. Moreover, you assume, in error, that “your own people” (by which I assume you mean whites) agree with you. Which they don’t. You’re going to save the white race despite itself? Are you even “white” as a former Jew? There is plenty of debate on whether the Jews are technically white or not, to which I say yes.

                That you’re either with me or against me rhetoric, that’s for actual war.

                1. Right, they largely don’t because they’ve been brainwashed into thinking that race doesn’t matter. Once they realize that it does, things will change quickly.

                  And yes, I am white.

                  1. Well, good luck with that (sorta).

        3. It’s not far enough along for what ARWP is advocating to gain much public support. The problem is, if we don’t stop what’s going on, eventually it may get to that point.

          Some states and localities are experimenting with letting illegal aliens vote, and have already gone “sanctuary” to reap the apportionment gains that come from having their populations swollen with illegal immigrants. I could see this reaching the point where some border communities or even states “flip”, and end up under the political control of non-citizens, and just throw the border completely open, possibly even subsidize illegal immigration.

          At that point we’d have only two choices: Either civil war or becoming a third world country. That’s when the ARWP’s stand a good chance of getting their way.

          I’d like to see this problem solved before it gets so bad the public would support his proposals. Because I think they eventually will, if it isn’t solved soon.

          1. Brett, most Americans don’t care as long as their bellies are full and their houses are heated and air conditioned. Wait till see you what happens when the dollar collapses and people are no longer comfortable.

          2. So you plan extortion?

            If the country doesn’t do what you want you’ll start a civil war? I’ll remember that the next time you get all pious about the rule of law, or start claiming that political violence is primarily a left-wing phenomenon.

            1. Why do you think Americans are obligated to have our patrimony thrown away and go along willingly?

    2. 20 to 40 MILLION illegals
      Caravans of 10,000 each coming to our borders right now

      Stop lying.

      At least 5 MILLION more in South America want to come here illegally
      I mean…want and do are two different things.

      1. The only alleged stats we have on the number of illegal aliens is from Pew, an open borders organization.

        One of the left’s arguments about sanctuary cities is that illegals are scared so we need to reassure them. Yet, they openly respond to strangers polling them?

        We don’t have reliable stats in other words. So 20 million is just as good a guess as any other.

        1. We don’t have reliable stats in other words. So 20 million is just as good a guess as any other.

          Even taking your anti-Pew ad hominem Maybe don’t make up numbers then, or else you’re just a liar?

  28. Lots of words.

    Very simply, this is a political conflict with a political solution (not judicial). Somin is welcomed to his opinion, and his solution is to campaign against the sitting President, and then cast his ballot. He can take his complaint to his elected representative. Congress can repeal the law, that’s another political solution.
    If congress ever grows a backbone and starts using the power they have, things will be better, but alas, those like Somin always toss democracy aside when their feeling get hurt, and they are too lazy to do the work of democracy.

  29. Wait until the next president declares a national emergency and uses it to take money to fund “emergency solar-power-technology-development research laboratories” or “emergency day-care for children of working women who live in states which voted for me” or “emergency gender-dysphoria counseling centers” or “emergency abortion clinics”. And when you complain, the answer will be: “Well, Trump did it!”

    1. The left will do that anyway.

    2. No, my answer will be: “I proposed to repeal the NEA while Trump was President. They refused to go along with it, because they were already planning this.”

      1. Do you honestly think the Republicans in Congress would support a repeal? Or that Trump would sign it?

        Of course not. Yet, again, according to you, it’s the Democrats with their nefarious plots who are to blame.

        Oh, and climate change is in fact an emergency, unlike this border nonsense.

  30. The House vote tonight effectively conceded the “legitimacy” of Trump’s national emergency declaration and just mooted all those boneheaded lawsuits filed around the country seeking to declare it illegitimate.

    You can’t “terminate” something that you are elsewhere contending was never implemented in the first place.

    Dems = Keystone Cops …. good job, fellahs.

  31. I understand the typical pass-veto-override structure is applicable in general circumstances, but when Congress is delegating onebof its powers to the Executive… it doesn’t seem logical that the President can veto its being taken back. Especially if the issue turns out to be that the Executive cannot be trusted with that power. IMHO, a simple majority of both houses should suffice. Though I agree with the sentiment that Congress (or any of the three branches) should be delegating its powers in the first place.

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