emergency declaration

Presidential Power and the Wall

An amicus filing in the case challenging the Emergency Declaration's diversion of funds towards building the Wall

|The Volokh Conspiracy |

Our friends at the Cato Institute have submitted an amicus brief (jointly with NYU's Brennan Center for Justice) on behalf of the plaintiff in the case of Sierra Club v. Trump in the Central District of CA.  [It is posted online here]  The case challenges Pres. Trump's use of the National Emergencies Act to divert funds appropriated for other purposes towards the building of a wall on the U.S.- Mexico border, largely on statutory grounds—that the president's action is inconsistent with the congressional oversight mechanisms built into the NEA—with an underlying constitutional, separation-of-powers theme:

The Cato Institute has joined the Brennan Center for Justice in filing an amicus a brief in support of a motion to enjoin the president from going through with this power grab. The president's emergency declaration to build a wall along the southern border is a sharp departure from past practice. Without judicial intervention, it has the potential to create an extraordinarily dangerous precedent, effectively giving the go-ahead for future presidents—of any party or political stripe—to invoke emergency powers to address routine or politically charged policy problems, or even use those powers to take actions for which Congress has expressly withheld consent. This would be clearly inconsistent with NEA's intent and allow the executive branch to side-step the legislative branch in order to achieve its policy goals, effectively upsetting the balance of power between the president and Congress. [emphasis added]

More from the summary prepared by Cato:

Since the Constitution doesn't provide the president with any explicit power to declare a national emergency, Congress passed the National Emergencies Act ("NEA") in 1976 to ensure any use of so-called "emergency powers" would be subject to strict congressional oversight. Congress wanted to provide the president with the necessary latitude to act in the event of a true nation-wide emergency, so it purposely didn't define the term "national emergency." However, the law's history makes it clear that Congress never intended to give the president wholly limitless power or discretion to declare national emergencies on a whim, let alone to allow the president to side-step Congress to fund a specific project.

Having unsuccessfully lobbied Congress for two years to acquire funding for the wall along the southern border, President Donald Trump invoked the NEA earlier this year and declared a state of national emergency to divert billions of dollars of appropriated federal funds to build a wall along the United States/Mexico border. The president issued an executive order citing a statutory provision that provides authorization and funding for military construction projects during emergencies that "require the use of the armed forces," but only if the projects "are necessary to support such use of the armed forces" and meet the statutory definition of "military construction."

In passing the NEA, Congress clearly intended for criteria like those to provide meaningful and enforceable checks on the president's authority to issue emergency declarations. But the president's invocation of the NEA fails to meet those criteria. For one, at the time of the declaration, there had been no sudden, unexpected change in illegal immigration at the southern border. Official government data puts illegal border crossings in 2017 at their lowest point in 46 years. There were also no significant, unexpected changes in patterns of crime or drug smuggling along the border. Second, it is clear from the president's own actions that he did not believe the situation at the southern border merited "immediate action." For the first two years of his administration, he accepted Congress's decision not to provide border wall funding with little pushback. Lacking the political will to acquire funding through the legislative process, the president now seeks what amounts to an unconstitutional end run around Congress's constitutional authority to appropriate federal funds.

It's a very good piece of work on a vitally important issue. And the lineup is itself interesting; in how many cases have Cato, the Brennan Center, and the Sierra Club been aligned in pursuit of a common goal?  The principle of congressional control over appropriations is a critical one, and those supporting Trump's actions here should consider the day—that is surely coming, whether in this election cycle or farther down the road—when politicians of a different stripe are in control of the White House and wielding this kind of power.  Worth reading.

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  1. It is a constant source of amusement to me that various legal professionals and institutions seem to believe that simply because they would choose to exercise presidential power differently than the actual President that the President has therefore somehow acted illegally or inappropriately. If they want to set policy so badly they should be honest about it and run for office instead of trying to use the courts to impose their agendas.

    1. Oddly enough, “simply because they would choose to exercise presidential power differently than the actual President” doesn’t appear anywhere in the brief, and the arguments are instead supported by legal reasoning.

      It’s almost as though you’re an ignorant, partisan fool.

      1. Really. They don’t actually admit that it their brief? Well I said they were dishonest didn’t I? But whether or not it’s stated honestly, the “legal reasoning” in essence is that the circumstances prevailing do not warrant the declaration of an emergency. Not really their call. And we could also point out that Congress itself failed to overrule the declaration in the manner specified by statue. So much for Congressional intent.

      2. It’s almost as if Barr’s new investigation didn’t mention some kind of cheesy strike back at Democrats etc. etc. etc.

    2. Nice to hear MKE was against all those suits against Obama for his actions. After all, if the President sincerely believes he’s acting within the law, then who is the legal profession to argue otherwise?

      If you like qualified immunity, you’ll love Presidential infallibility!

      1. I could explain that the validity of the presidential action in question would depend on the context and, in this context, the policy is well within his discretion. But I’m quite sure you wouldn’t be able to grasp this.

        1. Your initial argument had no such limit.

          But making the limit ‘well, if I think it’s okay, then all legal challenges are illegitimate’ is not a better argument than your initial one.

          1. I did you wouldn’t be able to understand, didn’t I?

            1. Yeah, I don’t understand that you’re the supreme arbiter of which lawsuits are legitimacy.

              1. I think you’re confused. It’s the Cato Institute and Brennan Center that are claiming to be the “supreme arbiters” of legitimacy in their brief.

                1. No, they are making an argument. Yes, making an argument includes positing that the argument is legitimate, just like every argument.

                  But it is you who are the one claiming that doing so is illegitimate. And the only evidence of illegitimacy you have given is that it’s an argument Trump doesn’t like.

                  That’s why Cato may be wrong a lot in my eyes, but you’re the only one who is actively silly.

                  1. I’m claiming their argument lacks merit. Kind of like yours.

                    1. various legal professionals and institutions seem to believe that simply because they would choose to exercise presidential power differently than the actual President that the President has therefore somehow acted illegally or inappropriately

                      This is not an argument on the merits; it’s saying that legal professionals aren’t allowed make such arguments at all.

                    2. MKE,

                      You have yet to make any substantive argument. You made an initial, warrantless statement indicating that the legal arguments were meritless and based solely on disagreement with policy, but you haven’t addressed any of the factual or legal issues discussed in the OP. You’re continued “na-na” with Sarcastro just makes you look, as he noted, silly.

                      Either explain how you will be fine when a future Democratic president exercises his or her discretion to declare a national emergency and divert defense department funds to a climate change project or admit your initial statement was silly.

                    3. Well, I guess in a general sense, if we are so unfortunate as to have a future democrat administration, the new president might declare a national emergency to further the climate change fraud. But, frankly I’m at a loss as to what funds could properly be repurposed for such an effort. What kind of military construction project would be contemplated? Could treasury forfeiture funds or funds for counter drug activities plausibly apply to anything related to the climate change hoax? So, no transferred/reprogrammed funds at issue with the wall construction could even plausibly be accessed in light of a future emergency declaration related to the climate change fraud.

                    4. MKE, any military funds at all could be repurposed, based on exactly the immigration argument—the southern border invasion—you are making:

                      Climate change will produce hoards of climate refugees, who will assail all our borders. Now let me at that military budget. Only a crash renewable energy program can save us.

                      That is just your argument, slightly recast.

                    5. So, an emergency declaration will issue to combat the climate fraud hoax and funds will be repurposed to build…a wall? Good.

                    6. And, Stephen Lathrop, I would add that a “crash renewable energy program” doesn’t much sound like a military construction project to me. Or a matter that could properly access monies for counter drug activities. So, your democrat president would have to identify some funds that could be legally accessed in light of the hypothetical climate change declaration. Don’t think there are any, at least among the sources identified by the President. And, I suspect that Congress would overrule such a nonsense declaration. Something they tried and failed to do in the case of the President.

                    7. Eminent domain to take over coal mines. Building fields of solar panels. And these are just two easy “construction” projects. It would not take much creativity to move well beyond these. If you really don’t see that this opens a Pandora’s Box of new Presidential power to usurp Congress’s constitutional authority to determine what money is spent on, you lack imagination.

                    8. It certainly does take some creativity (and not a little bit of intellectual dishonesty) to describe your plans as “military construction” projects. And, I’ll concede in the abstract that power call be abused. The House democrats illustrate this daily. But there is no usurpation of congressional prerogatives when monies are transferred/repurposed pursuant to laws passed by Congress.

                    9. MKE, any military funds at all could be repurposed, based on exactly the immigration argument—the southern border invasion—you are making:

                      Not true, the statute in question only allows the President to use “funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated” for military construction projects.
                      https://www.law.cornell.edu/uscode/text/10/2808

                    10. Pursuant to laws passed by Congress? Congress disagrees, as well as the District Court and Ninth Circuit who considered the application of 8005 and the other statute to this situation. But power is everything in this era of Trump. He has Five on the SC that will likely let him get his way.

                    11. Congress doesn’t disagree. There was no violation of any statute and they failed to “overrule” the declaration. The Sierra Club may disagree but who cares? Their cause of action is frivolous.

                  2. The wall is not a military project, either, MKE.

                    1. Only insofar as the Secretary of Defense, as I understand it, has not yet decided to undertake or authorize projects under 10 USC sec. 2808 (providing the authority to reallocate funding from military construction projects), although this was one potential funding source identified for border barrier construction. If only you were half as clever as you think.

                    2. Right, a defensive fortification along the border has never traditionally been considered a military project. [/sarc]

                    3. Nice to know that we are so worn down and tired from foreign interventionism that we are only capable of considering something military if it involves offensive actions.

                    4. MKE,

                      Thanks for acknowledging that, at least so far, the wall/fencing is not a military project.

                      Brett, see MKE’s more honest take. Also, just because some walls were put up for military defense does not mean all walls are for military purposes. Trump’s stated purpose for the wall is to keep out unauthorized economic migrants, not invading armies. Throwing possible terrorists doesn’t really work given no terrorists have entered the country that way.

                      awildseaking, your post makes no sense. No one said anything about offense versus defense. We have many military defenses in the US (missile systems, bases – with fences! -, fortified bunkers, and such). The proposed border wall is not and would not be for defensive military purposes any more than the x-ray machines at the airport operated by civilians can honestly be described as military defenses though they may catch contraband that could be used for terroristic purposes.

                    5. Speaking of honesty, why not try honestly representing the President’s intent rather than relying on some twisted MSNBC/MediaMatters like version of his intent? You know, just for the novelty of it.

                    6. And that’s where we will just have to disagree. Defending our nation’s borders from illegal immigration is most certainly a defensive military action. The military responds to far more than just formal armies.

    3. And it is a constant source of “amusement” to me that commenters here will ignore the substance of arguments they’ve decided they’re going to disagree with, post complaints about strawmen, and then comport themselves like they’ve contributed something meaningful to the discussion.

  2. All in all, it’s just another brief on the Wall.

    1. While I don’t always agree with Eddy … he wins the internet for today.

  3. Professor Post….I actually happen to agree with you about the problem of POTUS’ stretching the meaning of emergency under the National Emergencies Act. This has certainly happened.

    Where you and I part ways is that I actually happen to think we DO have a national emergency at the border. There is no other characterization I can use to describe the situation we have: it is an honest, no BS emergency. And we absolutely must get control of our own borders using whatever means we choose. Walls work. And vastly cheaper than stationing thousands of troops permanently. We can and must stop the flow of illegal aliens into this country.

    To be honest, I would very much rather have the Congress address this, as opposed to POTUS Trump doing it. That is the way it is supposed to be done. At least, that is what they taught me in civics class. 🙂

    1. Did they teach you that the President is the Commander in Chief with duty to defend our borders?

      1. I would hope not. Article II certainly doesn’t say anything about defending borders.

        1. I can picture you saying the same thing to Leonidas.

          1. President Leonidas…I think he was one of those after Jackson but before Lincoln?

            1. I guess I could have been literally claiming that there was a President Leonidas. Or maybe I meant that historically leaders have been defending their country’s borders from foreign threats ever since we had countries, borders, leaders, foreign threats, and, oh, history? I’ll be sure to explain myself next time so you’re not confused.

              1. Or maybe making a parallel between America and an ancient Mediterranean militaristic city-state in a defensive war is ridiculous.

                1. I wonder what Santayana would have said about you?

                  1. I’ve studies my Herodotus well enough to know your parallel is bunk.

                    1. What, economic migration wasn’t the primary issue Leonidas was fighting when defending the pass at Thermopylae?

        2. A rather facetious statement. How could military people defend against threats foreign and domestic if their boss can’t?

          1. Lots of stuff the military can do that their civilian leadership can’t.

            1. interesting conception of the chain of command. Maybe you actually believe this? I guess Truman acted unconstitutionally in firing MacArthur then? There’s a difference between being sarcastic and being idiotic.

              1. Don’t be silly. Your statements are ridiculously overbroad.

                Presidents can’t take up arms, go overseas, and shoot people, for instance.

                Illegal immigration isn’t a military threat so your parallels reveals more about your bloodthirsty desires with respect to illegals than anything else.

                1. “take up arms, go overseas, and shoot people” Almost sounds like war. what do you think a commander in chief does with respect to threats of war?

                  1. MKE, you may have watched Independence Day one too many times.

                    1. I take it that “Voize of Reazon” does not mean “voice of reason”?

                    2. I would have taken Voice of Reason had it been available. It doesn’t seem to be active though, so I suspect the folks at Reason reserved it to prevent someone like me from appearing to be speaking for the site.

                      Voize of Reazon seemed to be the next best thing but I can’t be as smug about my inspiration as I’d like to be, there is another one on Twitter.

                    3. I guess I also should have asked which one? The old classic or the awful sequel?

                  2. Um, he doesn’t shoot people himself.

                    I think you’re mixing the President up with medieval monarchs. Not a surprising mistake for the right these days.

                    1. You probably never heard of the “Whiskey Rebellion.” You might want to look it up.

                    2. Don’t be dumb; the modern Presidency isn’t the Presidency of the 1700s.

                      Or do you think that if Trump really wanted to grab a gun and go into Afghanistan that he’d be allowed to?

                    3. I think they’d not only allow him to, they’d cheer him on, and privately phone ahead to the Taliban with his itinerary.

                    4. Ah, the return of the sinister ‘they’ who want to kill Trump.

                    5. There’s a whole genre of killing or otherwise attacking Trump “art” out there, and it’s not in hiding, it gets put up on billboards.

                      People do paintings of somebody holding his severed head. Comedians joke about it. They draw cartoons of him impaled and bleeding. And you’ve got the cast iron gall to claim nobody wants him dead?

                    6. Frankly, Sarcastr0, I’m not sure what your claiming at this point. That the commander in chief isn’t really the commander in chief? Or that there are separate chains of command and the president isn’t really in charge? Or that combating a foreign threat on the border is not properly within the scope of the duty of the president to defend the country? Whichever, you’re wrong. You must be used to that by now.

                    7. Brett,

                      The billboards you link to were put up by one company as part of an ad campaign.

                      Distasteful as they are, they don’t show Trump being killed.

                      And your dislike of suggestions of violence seem to be limited to violence against those you dislike. You’re fine with other political violence. You’ve said so.

                    8. Brett’s concerns about Trump assassination are not unfounded. There are plenty of people who want him dead—and not without quasi-legitimate cause, at least in their own estimate (not mine). But Trump’s ill-wishers consider him an incipient tyrant, and would-be dictator. I worry about that too, but I am pretty sure the People have the upper hand, with impeachment.

                      But if that proves unavailing, and Trump’s ill-wishers prove correct, then what are the remedies? Ben Franklin listed them as, civil war, revolution, and assassination. Franklin did that to make the general case for impeachment—not to advocate on behalf of violent upheaval, but against it. That is my point too.

                      But Franklin’s argument supplies important emphasis concerning what will always be at stake during an impeachment. The nation, of necessity, veers dangerously close to a crisis of sovereignty, and the test of sovereignty has always been force and violence. To avoid that, the process has to be allowed to work, has to be seen to work legitimately, and those who try to thwart the process must be seen to act recklessly and illegitimately.

                    9. “But Trump’s ill-wishers consider him an incipient tyrant, and would-be dictator.”

                      “We Are Living In A Totalitarian Nightmare,’ Says Protester Freely Without Any Fear Of Government Retribution”

                      “WASHINGTON, D.C.—During a recent string of protests in Washington, one protester told reporters that “we are living in a totalitarian nightmare just like in The Handmaid’s Tale,” making the statement with absolutely no possibility of the government kidnapping and torturing her for her outspokenness.

                      The woman drew on her guaranteed free speech rights to state that “this government is like something out of a totalitarian dystopia,” as police stood by guarding to ensure her and her fellow protesters’ right to protest was protected.

                      “Women literally have no rights,” she said. “And we’re losing more each and every day.” She also said that her uterus has fewer rights than guns, though she admitted her uterus doesn’t need a license, government registration, or a background check.

                      “This is exactly like The Handmaid’s Tale,” she said for the seventh time that morning, though she was wearing the handmaid’s uniform entirely of her own free will and would shortly change into her regular clothes before returning to her home to rewatch the series on Hulu.

                      At publishing time, she told reporters she would love to draw further comparisons to dystopian fiction novels other than The Handmaid’s Tale, but she hadn’t read any.”

                    10. Trump is about the last President I’d worry about becoming a dictator. The vast majority of the bureaucracy are on the edge of open rebellion, the intelligence services are insubordinate, his control over the DOJ is very shallow, even “his” own party’s Senate only has his back for judicial nominations, and otherwise has spent the last three years spiking his agenda.

                      He has basically no allies in Washington.

                      And worse, his base of support among the voters consists of those people who have the most loyalty towards the Constitution, which means he’ll lose most of his support among the voters if he tries to become a dictator.

                      In practice, he’s actually been a relatively law abiding President.

    2. I actually happen to think we DO have a national emergency at the border.

      I have no idea where you live but I live on the Mexico/US border. What emergency? Please point out the “invasion” because none of us see one.

      We can and must stop the flow of illegal aliens into this country.

      Outside of racism – I’ve seen no rational reason why we want to stop hard working people escaping oppression who just want a better life from coming to our country. They are family oriented. Start small businesses. Become employers and hard working employees. I would hire an “illegal alien” over your sad ass any day of the week.

      Furthermore a wall does absolutely nothing on a 1,954 mile border that are bookmarked by two very large bodies of water.

      Nothing.

      1. Ok, fine. But you’re not the President. Neither is the Cato Institute or NYU, individually or collectively, you don’t set national policy. So, not to be indelicate, but who cares whether or not you see the matter as an “emergency.”

        1. Every Democrat-appointed judge is the President.

      2. regexp…We have a legal process to come to the US. It is not unreasonable to ask that foreigners follow the law, passed by the US Congress. I mean, they are illegal aliens. So rationally, I think we’d want to enforce our laws. 😉

        Walls work. If they did not, countries would not build them. Neither would the uber-wealthy, in order to keep the riff-raff off their pretty, manicured lawns.

        1. There’s something a bit odd about someone who takes his handle from the work most contemptuous of politicians in the history of the world issuing a paean to law enforcement.

          1. I wish someone would explain to me how a libertarian website ended up with a Trump-fluffing comment section.

            1. Turns out the readers weren’t here for freedom and free markets so much as hippie-bashing and contrarianism.

            2. Trump happens to be, sadly, in practice the most libertarian President in decades. It’s horrible, but it’s true. And Reason has been overtaken by the left’s march through the institutions.

              So the comment section likes Trump better than Reason’s writers do, precisely because actual libertarians still dominate the comment section, even if they no longer comprise much of Reason’s staff.

              1. Reason is now a left-wing publication?

                Missed that.

              2. Donald Trump has been endorsed by Libertarians For Tariffs;

                by Libertarians for Authoritarian Immigration Policies And Practices;

                by libertarians For Abusive Policing;

                by Libertarians For Statist Womb Management;

                by Libertarians For Voter Suppression;

                by Libertarians For Massive Military Spending;

                by Libertarians For Bigger Deficits;

                by Libertarians For Unlimited Presidential Immunity;

                by Libertarians For Better Relations With Murdering, Authoritarian Dictators;

                by Libertarians For A Muslim Ban; and

                by Libertarians For Self-Dealing By Government Officials.

                1. If by “Statist Womb Management” you mean against infanticide, then I’m for “Statist Womb Management.”

                  1. Don’t sell yourself short, Smails. You’re for all of it. A clinger to the core, and to the end . . . which. for American clingers, is approaching.

      3. Don’t you people ever get tired of these lies? The trope about the supposed Catholic, hard working Mexican family man is really getting old.

        1. Awww, people aren’t being as racist as you.

          1. Standard Democrat derision of Americans appears here in the usual form: name-calling.

            1. You criticize someone for calling out the racist assertion of a self-identified racialist? Yet you have nothing to say to Mr. Racialist himself?

              Most tribalism is shallow and sad. Yours is also sickening.

              Don’t be surprised when you’ve identified yourself by the people you reliably stand behind and those you reliably attack. It’s the bed you’re making for yourself.

            2. Yeah, Ben. In your eagerness to partisanize my contempt for RestoreWesternHegemony, it kinda looks like you’re defending him.

              I don’t think you want to claim this guy as one of your compatriots.

      4. Yeah so your nice little town doesn’t have any issues but law abiding US citizens lose their jobs and get murdered and raped and get drug crime in their (usually hard-left) sanctuary neighborhoods and you say there’s no emergency having ~10m illegal immigrants in the country because all is well and ignorance is bliss.

        This is why we consider people like you to be traitors. Because you don’t even give a semblance of a fuck when your fellow countrymen are murdered by people who never should have been here in the first place and your prerogative to bring these illegals in outweighs all other considerations.

    3. “For one, at the time of the declaration, there had been no sudden, unexpected change in illegal immigration at the southern border. Official government data puts illegal border crossings in 2017 at their lowest point in 46 years.”

      Oh, my. Look at that graph.

      Post cherry picked the lowest rate of illegal immigration in 46 years, and ignores that immediately after that low point, illegal immigration absolutely exploded, rising by a factor of at least 9 by spring of this year. All the pro-illegal groups are doing this, referring to increasingly obsolete statistics to pretend there wasn’t any emergency.

      Basically what happened is that Trump got elected on a platform of stopping illegal immigration, and illegal immigrants responded to the perceived change in policy by staying home. Then the pro-illegal establishment struck back, over and over, blocking increases in enforcement, blocking wall construction, and the news got out that Trump wasn’t actually going to be allowed to secure our borders. And the dam broke.

      And now we’ve got a failed state on our Southern border, the cartels have just proven that they are militarily superior to the nominal government of Mexico, and are actually in control. And there’s no emergency?

    4. Where you and I part ways is that I actually happen to think we DO have a national emergency at the border. There is no other characterization I can use to describe the situation we have: it is an honest, no BS emergency.

      I would think the word emergency comprises two elements:

      1) There must be a threat of significant harm. (A trivial problem cannot be an emergency); and
      2) That significant harm must be imminent.

      The border situation, of course, satisfies neither.

      1. And I think the statute in question assigns that judgement to the President, not you, rendering your opinion, Post’s opinion, and Cato’s opinion legally irrelevant.

        But, on the merits, not only has the rate of illegal immigration positively exploded since the cherry picked low point Post cites, recently the Mexican government lost a military battle with the cartels, and had to surrender to avoid having its troops and their families slaughtered.

        If having a failed state now in the de facto control of a criminal cartel on our border isn’t a military emergency requiring the military to secure that border, what the hell would be???

        1. And I think the statute in question assigns that judgement to the President

          Does it?

          1. Yes, it does.

            “SEC. 201. (a) 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. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

            (b) Any provisions of law conferring powers and authorities to be
            exercised during a national emergency shall be effective and remain publication in effect (1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and (2) only in accordance with this Act. No law enacted after the date of enactment of this Act shall supersede this title unless it does so in specific terms, referring to this title, and declaring that the new law supersedes the provisions of this title.

            SEC. 202. (a) Any national emergency declared by the President in accordance with this title shall terminate if—
            (1) Congress terminates the emergency by concurrent
            resolution ; or
            (2) the President issues a proclamation terminating
            the emergency.”

            1. You highlighted the wrong words.

              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. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

              1. Darn it. Damn lack of edit. Let’s try again.

                You highlighted the wrong words.

                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. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

                1. “…the President is authorized to declare such national emergency.” How are you confused by this?

          2. Notice that there’s no reference in there to me, you, Post, or Cato. “The President” makes the determination, Congress is authorized to rescind it subject to the presentiment clause, and that’s it. Nobody else at all has any role here.

        2. Brett, you know what else has been assigned to the President and not to us, or to you? The task of compiling all those border crossing statistics you credulously rely upon. Mind you, I am not asserting they are wrong. I am asserting that the guy in charge of them is a universally-recognized, super-serial-offender, self-interested, pathological liar. So I urge caution about the statistics.

          As far as I have been able to see from news coverage, there has been little or no attempt by news media to systematically vet those border-crossing claims. I started worrying about this back in the caravan days. Trump made extravagant claims about some large number of caravans, when only one was in evidence, and when all the hypothetical caravans times ten would not have deIivered his border crossing numbers, even if the caravans were real. And then the caravan issue dropped out of sight. I thought that was peculiar, and maybe a straw in the wind. With so many caravans in route, why wouldn’t you expect the story to continue?

          Then, at the height of the crisis, a photo-op showed up. There were a bunch of would-be immigrants caged under a highway overpass, allegedly because there was nowhere else to put them. That produced an orgy of press coverage. Then, with no explanation or accounting from the news, in just a day or two, the caged immigrants were all gone, to who knows where. I still wonder what accounts for that incident.

          I am surprised to see the news media behaving as credulously as you behave, Brett. But sometimes news media do behave badly, or just incompetently. Television news especially likes photogenic stories that do not required too much research, or any research. If there is a story line that the Trump administration has a crisis on its hands, well that isn’t a minus either.

          Here is what I suggest, to you Brett, as a news and statistics consumer. Anytime something particularly striking shows up, ask yourself, about the source, “How do they know that?” If the answer is not well-presented in the reporting, that is where reservations and skepticism should begin to dig in. Don’t stake too many of your own assertions on stuff you don’t know where it came from.

          1. Oh please, Professor, really? C’mon = Brett, you know what else has been assigned to the President and not to us, or to you? The task of compiling all those border crossing statistics you credulously rely upon.

            It is not like POTUS Trump is sitting in the Oval Office writing python database calls to extract border crossing stats. If you have evidence of DHS employees fudging stats, please name it.

            What we have happening on our southern border is an emergency. It has to be stopped. Their (illegal aliens) motive for coming here is immaterial to the determination of whether or not we have a national emergency at our border or not. The border states and their communities are getting overwhelmed by the cost of spike in services they provide due to the addition of hundreds of thousands of illegal aliens.

            Now I personally think there are a number of instances where the National Emergency Act has been stretched past what Congress intended. But this border problem isn’t that. It IS an emergency.

            1. Atlas, the evidence of Trump political appointees trashing the data products of government offices they manage is everywhere. It is not a controversial assertion. I will not try to support it, because I already took the lazy way out, by admitting that I have no proof that the Trump immigration stats are wrong.

              My assertion is that anyone who believes those stats is probably credulous. That does not rule out that the stats could be accurate. It just asserts that the folks now bruiting them about seem to have no way to show whether they are accurate or not—and they come from a notoriously unreliable source. It seems especially foolish to try to use all caps boldface as a substitute for corroboration.

              1. Nice try Professor. But thank you for your reply.

                I repeat: If you have evidence showing DHS employees fudging stats, name it. You’re the one making a blanket statement on why you should not believe the stats because of their source; I am challenging you to produce the evidence.

                To date: You have produced nothing. Nada. Zilch.

                1. Which part of SL’s argument do you dispute:

                  (1) that Donald Trump is an habitual liar, or

                  (2) that the assertions of habitual liars shouldn’t be presumed accurate?

      2. Let’s add, the threat must be new.

        We’ve had illegal immigration for years, without much damage from it, by the way. But suddenly, when Trump wants to rile the nitwits, it’s an emergency.

        1. I’m missing the part in the statute that says that. Perhaps you could point it out?

          1. Check the dictionary for the word “emergency.”

            1. Check the statute for whose opinion of whether there is one matters.

        2. Every time you call the deaths of innocent Americans as “not much damage,” the rope tightens.

          Put your own countrymen first. Why should we even be a country if we put the needs of illegal economic migrants ahead of our own?

      3. Well David….we have a difference of opinion. Fortunately, the Executive branch makes that determination, and not you. Thusfar, the Executive branch appears to agree with my interpretation of what we see at our Southern border.

        1. You are begging the question.

          And the answer that you give makes the President’s power supreme over Congress. That’s not what Congress intended. It’s also not how America is intended to operate.

          1. Hey Sarcastro….Congress delegated that authority to the POTUS, not me. Congress made that choice (unwisely, in my view). I happen to agree with you that this is not the way we’re supposed to operate. The Congress should do their damned job.

        2. Fortunately, the Executive branch makes that determination, and not you. Thusfar, the Executive branch appears to agree with my interpretation of what we see at our Southern border.

          Fortunately, the Executive branch is not the final word on what the law means.

      4. In other words, harm to Americans is not significant. Americans don’t matter. Their concerns can be ignored in the usual Democrat fashion. Let them eat cake.

      5. Actually, it satisfied both conditions decades ago. Thousands of Americans have been murdered and raped by illegal immigrants and the harm is not only imminent, but post-haste as it has already occurred and is still occurring.

  4. Weird obsession continues.

    1. If you mean the wall is a weird obsession, I agree.

      1. People want a wall because Democrats and the news media are such consistent and remorseless liars, eager to sell out Americans at every turn. Enforcement funds can be stolen and enforcement personnel can be idled, but a wall stands in the face of lies.

        1. Rarely do we see such an honest post. Ben wants the wall, even in the face of getting int illegally, entirely to Own the Libs.

          1. You are usually not that facially dishonest.

            Wall is to protect Americans. Democrat and news media lies can’t topple or undermine a wall the way they bring down organizations and cultures and dampen the human spirit.

            1. Wall is to protect Americans That’s in dispute

              Democrat and news media lies That’s in dispute.

              they bring down organizations That’s…just made up?

              they bring down…cultures…wait, what?

              they…dampen the human spirit this sounds like more of a personal problem.

              1. Lame. You are very dismissive of Americans’ concerns. Not your kind of people, I guess.

                1. You don’t get to say who is or is not American, Ben.

                  I know that’s hard to swallow, but it’s true.

                  1. American are people born in America or naturalized. Some Americans have concerns. Democrats are dismissive of those concerns, preferring foreign people instead.

                    1. Some Americans have concerns.

                      And most don’t.

                    2. Most people aren’t murdered, therefore there’s no need to care about when someone is murdered

                2. Saying in dispute is giving your sides argument s more credit than you are giving mine.

                  1. What arguments? These the are arguments against a wall that I have seen:

                    – Wanting a wall means you are [insert usual name calling here]. Standard Democrat derision toward Americans.
                    – Everything will magically work out great if we don’t change anything, or if we open up the border. And if it doesn’t we can deny Americans concerns about it forever.
                    – People who are trying to come here matter. Americans who are negatively affected by it — who cares?
                    – Our spreadsheet says open borders are a net positive. It is okay to hurt some Americans in the process, because the numbers total up positive. Trust our spreadsheet calculations.
                    – Some other less tangible, more easily corrupted means of enforcement will work better. Trust us.
                    – Walls aren’t perfect, so why bother doing anything?
                    – The usual libertarian dodge: sure it will harm Americans, but it’s only because society doesn’t perfectly conform to a libertarian model in all respects. Also, we’re fighting for these open borders every day, but barely mention all the other stuff.
                    – illegals and Ph.D scientists are the same. We need Ph.D scientists. So we have to let illegals cross the border and stay here.
                    – someone else came here once, therefore no one can ever oppose anyone coming here
                    – some pro-wall argument is at least partially incorrect. Therefore, all pro-wall arguments are completely wrong and can be ignored.
                    – some rancher who lives on the border doesn’t want a wall. He should get to decide for everyone.

                    Did I miss any?

                  2. Forgot some:

                    – wildlife might be inconvenienced. Wildlife matters.
                    – Hitler/Voldemort built a wall once. Walls: yuck!

                    1. Ben you seem to be misunderstanding finding your arguments ridiculous with persecution.

                      That must make your life difficult.

                    2. Intentionally facilitating a migration that harms Americans, because Democrats hold [at least a very large fraction of] Americans in contempt, is de-facto persecution of Americans.

                    3. Intentionally facilitating a migration that harms Americans

                      It doesn’t harm Americans.

                      I mean, of course not every single American will be better off, but that’s a pretty stupid way to evaluate a policy, since it basically means that we cannot enact any policies ever. (Of course, we also can’t not enact any policies, because some Americans will be worse off if we don’t.)

                    4. That’s exactly not caring about harming Americans.

                      Note how this is specifically in the list of arguments above. It’s the spreadsheet one.

                      Rich guys get domestic services and rich business owners get cheap manual labor. Poor Americans are the ones who are harmed. But some number on a spreadsheet is positive, so Democrats are fine with the harm they cause to poor Americans. They don’t associate with people like that anyway, so it’s easy for Democrats to deny they exist.

                    5. That’s exactly not caring about harming Americans.

                      I can’t tell if you’re being stupid or if you just are stupid. Immigration is beneficial. Therefore, restricting immigration is what harms Americans.

                    6. By this sort of reason if you shot one American in ten, the remainder would have more living space, housing would be more affordable, so shooting one American in ten wouldn’t harm Americans.

                      Yes, conceded: Uncontrolled immigration is actually beneficial to some fraction of the population. It hurts another fraction. By the principle of Pareto optimality, so long as you can claim it benefits the one fraction more than it harms the other fraction, it’s all good, the people benefited can compensate the people who are harmed, and still have some of the increase left over.

                      Which never happens, of course, but we’re supposed to pretend it does.

                    7. “It doesn’t harm Americans”

                      Tell that to the dead you damned traitor.

              2. Did you know, Sarcastr0, that marketing research shows that the word, “moist” requires careful context. Used carelessly, it makes people uneasy.

                1. Do you suspect certain folks on the left moisten Ben’s spirit?

  5. The legalities of this are beyond me, though my fundamental impression for decades has been that Opposition sniping (from both parties, depending on which one held the White House) has made it arguably illegal for the President to do much of anything.

    That said, in my experience, finding yourself on the same side as The Sierra Club is grounds for reappraising the situation.

  6. The US military has been building thousands of miles of border fencing in Afghanistan and other ME countries.

    But securing our own border is controversial.

    What kind of terminal mental illness is going on here exactly?

    1. terminal mental illness

      Normal arguments here, folks!

      I wonder what’s different about what’s going on in Afghanistan versus what’s going on at our border?

      1. Its a generalized political sickness that allows a country to spend trillions of dollars defending borders on the other side of the globe while leaving its own unsecured.

        1. Backpeddaling from mental illness to ‘generalized political sickness’ noted.

          But even this is wrong; your definition of unsecured is not universal. And it’s rather a page out of the fascists handbook to declare that those who dispute your political take are some political sickness.

        2. Afghanistan fighting is about defending borders? Doesn’t that mean there should also be maps with moving arrows? Where are the maps with moving arrows?

    2. From time to time they also blow up wedding parties and farmers working in their fields, so we have that to look forward to.

    3. The US military has been building thousands of miles of border fencing in Afghanistan and other ME countries.

      Setting aside whether that’s even true, I don’t think I would be holding up our strategy in Afghanistan as a model for much of anything.

  7. “those supporting Trump’s actions here should consider the day—that is surely coming, whether in this election cycle or farther down the road—when politicians of a different stripe are in control of the White House and wielding this kind of power.”

    We’ve already had such an issue, and it was far more clear cut. President Obama “passing” DACA, after lobbying for immigration reform from Congress for years, and failing to get it. So he rewrote the immigration code himself. In the process, he started a new program, which has administration costs in the hundreds of millions of dollars.

    1. I think the work permit portion of DACA was too far.

      But Congressional appropriations are rarely as directive as they are for the DoD.

      NSF gets a pot of money they get to spend as they see fit. NASA gets 7 pots of money and can arrange within to taste. The DoD is told how many F-35s and JDAMs to buy and at what price, and need to ask Congressional permission if they want to change that number.

      1. Ignorance is bliss. Monies are transferred/reprogrammed all the time. The underlying appropriations acts contemplate it.

        1. And, as set out in all appropriations acts, to reprogram money in nontrivial amounts you need to get affirmative approval from all 4 relevant committees across both the House and the Senate.

          1. You’ve commented subsequent to this comment, so I know you’ve read the above, but no response is forthcoming.

            Maybe don’t be so quick on the trigger calling people ignorant.

          2. And as set out in the National Emergency Act, there are exceptions to that rule.

          3. I’m aware of no authority that categorically prevents all contemplated transfers in the present case. Please cite to your authority.

          4. Read the OP, both of you.

            MKE, your argument has shifted quite a bit from ‘this is just like DACA’ to ‘reprogrammings are allowed, fool’ to ‘Please restate the OP’s argument to me.’

            1. MKE,

              What does it feel like to get owned by Sarcastro? Does it ever feel like you should maybe make less sweeping generalizations, consider that a conclusion that fits your preferred policy objectives might not necessarily be correct, or that you should just read more and type less?

              1. Yeah, ok, your little buddy claimed there was some provision applicable in the present case that barred the repurposing of funds absent some sort of approval from 4 House/Senate committees. Wikipedia seems to be failing him. Surely a super lawyer like you can cite this provision? Where is it hiding?

                1. Among other provisions:

                  Sections 8005 and 9002 of the 2019 DOD Appropriations Act authorizes the DOD to transfer up to $6 billion in DOD funds for “military functions (except military construction).” Funds may be transferred only for “unforeseen military requirements” and may not be transferred “where the item for which funds are requested has been denied by Congress.”

                  Congress specifically denied funding for the wall as Trump is requesting. This is a clear end-run around Congress’s express intent with respect to border wall funding. As a result, funds are being taken from military projects that Congress specifically funded. As discussed elsewhere, this expansion of presidential power is a very, very bad idea, regardless of the wisdom of the wall.

                  1. Uh, not even close. Under 10 USC 284, DOD may provide support to other federal agencies for counterdrug activities, including the construction of roads and fences to block drug smuggling corridors. Funds were reprogrammed under section 8005 for such counter drug support. Under section 8005, “unforeseen” and “denied” refer to specific budget items DOD proposed during the appropriations process. The counterdrug support activities were unforeseen at the time of the DOD’s budget request and Congress never denied any specific request by DOD for appropriations to fund construction under sec. 284.

                    1. Not only close, spot on. Sections 8005/9002 are legal provisions that put limits on how DoD funds can be repurposed. You asked for it, I gave it. Of course, these provisions don’t occupy the field.

                      I would note, here you are arguing that the wall is for drug interdiction purposes, below you are claiming it is a military defense. And those are two different things, plus not the thing Trump is claiming the national emergency is about. In other words, your and Trump’s argument requires lots of linguistic gymnastics. Moreover, to make a non-ludicrous argument in defense of the drug interdiction repurposing, the administration is repurposing for fencing, not a wall.

                      The Courts that have ruled on the “unforeseen” and “denied” issue have disagreed with you. Five Justices on the SC may agree, but that is hardly a given. I think that is a ridiculous interpretation because it provides essentially no limiting principle. You just have to make a slightly different proposal than you did during the budget process and then you can get money Congress specifically denied? Not a good precedent.

                    2. A ridiculous interpretation that has no limiting principle? It’s a reasonable interpretation based on the plain meaning of the statutory text. Here’s my limiting principle: Congressional oversight. If Congress thinks the executive abused its discretion then, after notification of a transfer, it can address the issue if it so chooses (and I point out again that Congress failed to overrule the declaration). The bigger problem is giving any whacko plaintiffs group the power to sue to challenge the administrative transfer/reprogramming. Now there would be an interpretation with no limiting principle, especially in today’s environment where activists still refuse to accept the results of the 2016 election.

                2. And the larger point, the reason that Trump invoked, or attempted to invoke, his powers under the National Emergencies Act is because he couldn’t otherwise repurpose/reallocate DoD funds. Your initial argument was “Monies are transferred/reprogrammed all the time. The underlying appropriations acts contemplate it.”

                  What is the cite to the appropriations act that contemplate reprogramming funds for a wall? You won’t provide one because there isn’t one.

                  Funding for the wall (in the amount and for the part Trump wants) was specifically denied by Congress and Sections 8005 and 9002 specifically limited such transfers to “unforeseen military requirements” (not the wall) and only where Congress had not specifically denied funds for that project (which they did in the case of the wall).

                  1. There are multiple sources for funding 31 U.S.C. sec. 9705, 10 U.S.C. 284 and 10 U.S.C. 2808 and there were no specific budget line item request denied by Congress with respect to the relevant appropriations. I think the proper legal expression is “you’re full of it.”

                    1. Again, every court that has considered it has rejected your definition of “unforeseen” as merely requiring that a specific budget line item was not proposed and then rejected. Five Justices might agree with you, but no more than five. Of course, that’s all it takes, but, again, that interpretation leaves Section 8005 as essentially useless as it takes little effort to recast the “purpose” (first stop invading hordes, a military defense, no it is drug interdiction) and specifics (this is for fencing, not that rejected wall, etc.)

                    2. All I need is five. Somehow I suspect you’d have a different opinion if five justices supported you. And you simply fail to understand the basic statutory and policy arguments regarding the interpretation of section 8005. I don’t know what to say? Go back to school? Or maybe finish school?

            2. I’ve read the OP. As I point out above, illegal border crossings dropped dramatically when Trump took office, based on the perception that the US was going to get serious about enforcing the border. The low that followed his inauguration is the border crossing number that Post cites as proving the lack of an emergency.

              And then when Trump’s opponents managed to block his initiatives, illegal border crossings rebounded to even higher levels! They were high and rising fast when Trump declared the emergency.

              Post basis his assertion about the lack of an emergency on a border crossing number that was obsolete even two years ago. This amounts to deliberate deception, there’s no freaking way Post doesn’t know that he is cherry picking an unrepresentative moment to mislead people.

              1. DMN’s October.26.2019 at 11:16 lays out why you’re wrong.

                But so does the OP – the wall is not responding to a crisis. Look at the timing – it’s not about what’s happening on the border, it’s responding to Dems not going along with what Trump wants.

                Even if you really, really, want a wall, that kind of end-run around separation of powers is not what the Act was intended for.

                1. The National Emergency Act is all about taking separation of powers and tossing it in the trash. It’s a direct delegation of Congressional power to Presidents.

                  That law is a terrible idea, but they passed it, and reenacted it when the Supreme court struck it down. So it’s a terrible idea Congress owns.

                  And that law, which Congress passed, does not assign the task of deciding if there’s a crisis to you, to me, to David Nieporent, to Post or Cato, or even random judges in the 5th circuit. It assigns that judgment call to the President.

                  He made it, Congress failed to override, and your disagreement is of utterly no significance.

                  1. The National Emergency Act is all about taking separation of powers and tossing it in the trash. It’s a direct delegation of Congressional power to Presidents.

                    Only under your interpretation. That seems like it might be an indication your interpretation is wrong, eh?

                    1. He misunderstands the context of the Act. Before the Act, presidents were saying, “I can do anything I want Because Emergency.” (The canonical example is Truman seizing the steel mills.) The Act was an attempt to constrain the president’s ability to do so, not a delegation of powers to the president.)

                      (In that way, it’s similar to the War Powers Act. Looking at it in isolation, it looks like Congress delegating new power to the president to use the military. But actually, before the WPA, presidents claimed the power to use troops whenever and wherever they felt like it, whether or not Congress authorized it. The WPA was an attempt to constrain that power.)

                    2. No, David, I get that. Presidents were asserting emergency authority with no statutory basis. Congress, instead of putting a stop to the usurpation of their power, decided to regularize it, instead, make it an official delegation. THAT is my “terrible idea”.

                      So the NEA canceled previous emergency declarations, set out a procedure for and limits to them and barred such declarations outside this system.

                      Then the Court came in and said, “This statute is subject to the presentiment clause.”, and struck it down, so they reenacted it with the current system.

                      Which current system Trump is actually complying with, so, terrible idea, but he’s following the law.

              2. Brett Bellmore writes: Post basis his assertion about the lack of an emergency on a border crossing number that was obsolete even two years ago. This amounts to deliberate deception, there’s no freaking way Post doesn’t know that he is cherry picking an unrepresentative moment to mislead people.
                Just for the record, let me point out that these weren’t my assertions; I was quoting from the Cato/Brennan brief.

            3. Well sport, you claimed there was some sort of provision barring the repurposing of funds for wall construction. I asked you to identify it. You seem unable to do so. I guess Wikipedia just isn’t a substitute for actual knowledge now is it?

              1. You mean like in the appropriation acts that affirmatively lay out the procedure that wasn’t followed here, MKE?

                1. Wow. Completely ignorant yet completely sure of yourself at the same time. It’s like arguing with a teenager.

                2. Well, that’s brilliant: You’re analyzing this as though there wasn’t a “National emergency act” that explicitly permits that procedure to be bypassed.

                  1. Brett, read back to the beginning of the MKE dialogue. He’s not talking specifically of that statue. Or he wasn’t until now. Consistency of argument isn’t his strong suit.

                    You’re also wrong, and your ipse dixit textualism continues to ignore the OP, as well as DMN’s discussion, as well as my own above.

      2. I’m sorry. Is your actual argument that the DOD is “special” in terms of congressional appropriations? That the president can move hundreds of millions to billions of dollars funds around and create vast new programs that affect millions of people, all without Congressional authorization, so long as it’s not DOD monies being spent? Even if Congress has specifically considered the President’s vast new program, and deliberately NOT funded or approved it?

        That strikes me as a bit of a ridiculous argument.

        1. Congress treats the DoD as special in it’s appropriation bills, yes.

          No, it cannot start new programs with reprogrammed funds.

          1. You are simply laughably wrong.
            But, I invite you to actually cite law showing your point, that the DOD is “special”, while other organizations are “not special”.

      3. And did the president repurpose funding for F-35s? No.

        1. Military construction is similarly dedicated to particular projects, dude.

  8. Our friends at the Cato Institute…
    The Cato Institute is an American libertarian think tank headquartered in Washington, D.C. It was founded as the Charles Koch Foundation in 1974

    Sorry, I disagree with the very first sentence. Nothing funded by the Koch Brothers is anybodies friend, but the Koch’s friend. Libertarian-ism for the Koch’s, peasantry for the rest of us.

    1. Well, I’ve learned on this blog that the number of those who call themselves libertarians who are aristocrats at heart is nontrivial.

      1. Less aristocratic—which has connotations of noblesse oblige responsibilities to society—than Bolshevik: a sense of reality and truth as entirely malleable in service of present needs; a default demonization of those not in their camp; and a lusty validation of violence as solution to domestic political problems. There are more than a few commenters here whose chief objection to Stalin, Mao, and Hitler was the identities of the perpetrators and victims, not the methodologies.

        1. The capitalism-mediated meritocracy they imagine would end in feudalism; their imaginings further put themselves at the top of this heap. Hence aristocrats.

          There are lots who are indeed as you describe; but many in that set don’t call themselves libertarian. (Though some do, and that’s even sadder.)

          1. Gotcha re. artistocrats.

  9. if The Supreme Court simply stuck down entire laws when a part is found unconstitutional sending the problem back to congress this could never have happened. Without the legislative veto the grant of power would have been structured differently, say by a short sunset period.

  10. “Without judicial intervention, it has the potential to create an extraordinarily dangerous precedent, effectively giving the go-ahead for future presidents—of any party or political stripe—to invoke emergency powers to address routine or politically charged policy problems, or even use those powers to take actions for which Congress has expressly withheld consent.”

    That’s the freaking status quo, Post! That’s the reality of the National Emergency Act, the whole time it’s been in effect, not some new development.

    1. That’s not how it’s operated in the past. Politically charged policy problems have not been the usual ambit.

      Certainly not like this ‘Congress said no, but nyah!’ attempt.

      1. Pretty much every invocation of the national emergency act is politically charged; meaning, in pretty much every instance, there are significant numbers of people objecting to its invocation.

        The fact that you are not among those objecting just shows that you’re a statist and an authoritarian.

        1. I don’t think that’s true at all. You can find some people against it, sure, but nothing like the broad condemnation of this partisan power grab by anyone who isn’t fully into defending Trump.

          1. Where being “fully into defending Trump” just means, “everybody who doesn’t agree with your criticisms of him”.

            We have a political argument going on about whether to defend the border. The Democrats want to continue their long term program of “electing a new people”, and both parties are in hock to business interests that love to keep wages suppressed, and often rely directly on illegal immigrant labor. The only faction that’s reliably on the other side is the actual voting public.

            I’ll gladly concede that there’s a Congressional majority in favor of leaving our Southern border undefended. But they are somewhat hobbled by the fact that coming out and saying so would be political suicide, so they’ve stuck to indirect measures like under funding border security, instead of just passing the “Leave The Border Undefended Act of 2018”.

            And that leaves the door open for Trump to exploit loopholes to effectuate the voters’ will. Loopholes that are there because Congress can’t openly prohibit defending the border.

            Yeah, if Congress hadn’t delegated so much power to the Executive branch, he couldn’t do that. But they did.

  11. This suitably reflects the sort of milquetoast libertarianism Cato embodies.

    1. Only the most badass libertarians are for the small government border wall.

      1. If you oppose US border enforcement, you’re not a libertarian. Why? Because it is impossible for the US to become libertarian with large numbers of illegals coming into the US. The most likely outcome of open borders is, in fact, some form of socialism/fascism.

        1. Nice ideology policing.

          Arguing that true libertarians must worry about practicalities is pretty funny.

          1. Actually, libertarians ceasing to worry about practicalities like this is a relatively new development. One of the major libertarian arguments against big government is precisely the practicalities: The knowledge problem and public choice theory are precisely about the practicalities.

            Yes, libertarians have always advocated open borders. Until recently, that was supposed to be the last thing you’d go for, after everything else was done. Because of the practicalities.

            Libertarians used to understand path dependence, that if you opened the borders while still a welfare state, you’d attract people who WANTED a welfare state, and the libertarian program would be dead. Well, the libertarian movement is now institutionally under the control of leftists, who are just fine with the libertarian program being dead. And that’s why they now pretend that path dependence isn’t a libertarian thing.

  12. There is a border emergency, in the form of an invasion, lawfully and rightly declared and in effect. Most Dems have opted to conspire to violate 25 USC 1324 in hosting this invasion with Sanctuary City and State harboring areas. Police are getting killed by illegals at regular intervals, such as at Somerset, CA Wednesday. Organized transborder crime is rampantly more blatant, as with MS16. The economic assault on our labor laws with illegal labor is significant.
    If CATO has signed on to the DNC talking points that answers for a brief, so much for their coherence.
    Why must Trump stand alone to defend against this invasion? Article 4, Part 4 states that the United States shall defend each state against invasion. Trump alone heeds it.

    1. hosting this invasion is quite a self-refuting turn of phrase. But I also like economic assault

      I count 8 falsities in the first paragraph. Anyone else able to find more?

      1. It takes a lot of guts for someone with an AOC level comprehension of law and history to make an issue of a couple of typos.

        1. Didn’t talk about typos.

          1. Do you even read your own comments? I wouldn’t blame you if you didn’t.

            1. Bring quotes. Or I will assume a reading comprehension problem.

  13. I count the most grievous falsity as pretending a transborder crime wave isn’t even a crime.

    1. From invasion to crime wave. Goalpost shifting.

      And no data actually calling it a crime wave except for one anecdote. Also typical.

      1. MS13 (not16) is one anecdote? The slew of cops killed from your non-emergency is one anecdote? That doesn’t even go to the civilians killed. In Northern CA alone we had one in Somerset, one in Neuman, two in Sacramento area just in the last year. Cops killed by illegals. No disorder there.

        1. To clean up my own post, I see the two officers killed in Sacramento were in 2015, well outside the last year. However, a more methodical survey of illegals crimes since 2011 in Texas shows

          >>>Over the course of their entire Texas criminal careers, these 10,389 individual identified as illegal aliens while in prison, were charged with more than 47,000 criminal offenses which included arrests for 1,932 homicide charges; 5,581 assault charges; 3,624 burglary charges; 6,720 drug charges; 339 kidnapping charges; 2,675 theft charges; 3,688 obstructing police charges; 2,426 robbery charges; 2,980 sexual assault charges; 1,150 sexual offense charges; and 1,576 weapon charges. DPS criminal history records reflect those criminal charges have thus far resulted in over 25,000 convictions including 1,145 homicide convictions; 2,826 assault convictions; 1,967 burglary convictions; 3,938 drug convictions; 149 kidnapping convictions; 1,265 theft convictions; 1,668 obstructing police convictions; 1,631 robbery convictions; 1,903 sexual assault convictions; 709 sexual offense convictions; and 624 weapon convictions.<<<

          https://www.dps.texas.gov/administration/crime_records/pages/txCriminalAlienStatistics.htm

          I think I see the attributes of a wave.

          1. Thanks for bringing numbers.

            But without a baseline, you can’t claim a waive. In fact, illegals commit crimes at a lower rate than citizens, even including the small subset that are in gangs/cartels.

            Crime is not out of control in the border states, though to hear the GOP tell it it’s like Robocop’s Detroit out there. It’s a boogeyman, and you’re falling for it.

            1. You say it’s not. POTUS said it is, pursuant to law. Be sure and vote next time.

              1. Read the OP for why the POTUS isn’t acting pursuant to the law.

                But your ceding our subsidiary wave argument is noted.

                1. We read it. The OP is wrong, because the law assigns that decision to the President, not Post.

                  1. All you really say is ‘the OP is wrong’. Or the scaremongering about immigrants in this subthread.

                    It’s telling how little you actually have to argue with.

                    1. I have literally linked to and quoted the text of the law, where it assigns the decision as to whether or not there’s an emergency to the President.

                      Your determination to ignore any arguments against your position DNE other people not making them.

                2. POTUS acts pursuant to the emergency act and, as I mentioned, but you sidestepped, Article 4, Part 4.

            2. “In fact, illegals commit crimes at a lower rate than citizens, even including the small subset that are in gangs/cartels.”

              Going to need a cite on this one, and color me skeptical of any studies purporting to differentiate between crimes committed by citizens v.s. those committed by illegal alien gang members…

                1. Perhaps you missed where I specified illegal alien gang members…

              1. Democrats will say: it’s okay to let some people get murdered as long as a statistical argument can be made minimizing it.

                1. Given our foreign policy, lack of a police state, gun policies, etc, making the ‘zero murders or you’re a moral monster’ argument isn’t going to fly.

                  1. Dividing our country from others flew at the founding, the Constitutional convention and ratification and in the present statutory scheme. Trump alone obeys the oathsl of office and Constitutional command of Article 4 to enforce these laws and defend us from this invasion.

            3. But without a baseline, you can’t claim a waive.

              The baseline for crimes committed by illegal aliens is zero.

              In fact, illegals commit crimes at a lower rate than citizens,

              Bullshit.

              1. The baseline for crimes committed by illegal aliens is zero.

                This is how I can tell you’re not coming from a serious place. Or even a place that’s willing to read JRipplefireEsquire’s arguments that I’m replying to.

                1. >>>Non-citizens constitute only about 7 percent of the U.S. population. Yet the latest data from the Justice Department’s Bureau of Justice Statistics reveals that non-citizens accounted for nearly two-thirds (64 percent) of all federal arrests in 2018. Just two decades earlier, only 37 percent of all federal arrests were non-citizens.

                  These arrests aren’t just for immigration crimes. Non-citizens accounted for 24 percent of all federal drug arrests, 25 percent of all federal property arrests, and 28 percent of all federal fraud arrests. <<<

                  https://www.heritage.org/crime-and-justice/commentary/crimes-illegal-immigrants-widespread-across-us-sanctuaries-shouldnt

  14. What will be the next national emergency discerned and addressed by President Trump?

    Too many abortions?

    Kanye’s IMAX feature too short?

    Shortage of Popeye’s chicken sandwiches and Impossible Whoppers?

    Inadequate school prayer?

    Alec Baldwin still on Saturday Night Live?

    Melania still refusing to sleep in the marital bed?

    Inadequate Chick-fil-A availability in educated, modern communities?

    Too many polls indicating fading prospects for Pres. Trump?

    Too difficult to smuggle porn stars into the White House?

    Major retailers refraining from selling certain guns, and NRA under siege?

    Inadequate ketchup on last two presidential Whoppers?

    All of the bright, ambitious young people leaving desolate backwaters at high school graduation, then breaking promise to return?

    Obama popularity figures still too damned high?

    Military forecasts that replacement of clingers is a certainty?

    1. How do you keep escaping from Arkham Asylum?

    2. If uneducated, semi-literate idiots like you come to power, “all the bright, ambitious young people” will be leaving the US because it will become a shithole.

      1. My preferences have been prevailing in America throughout my lifetime, NOYB2, which is likely the reason you hate modern America . . . too much damned progress, reason, science, tolerance, modernity, inclusivity, and liberty for a clinger to handle.

    3. None of those issues is military. Even the last one where you inserted the word military.

  15. Hey liberals, how many Mexican mestizos does America need? Please give a number.

    1. How many would it take to make your head explode?

  16. Cato’s concern over “executive overreach” seems so selective that one can’t help but come to the conclusion that Cato is simply a progressive institution pretending to be libertarian.

    1. Cato seems pretty consistent. Care to go into details?

    2. “one can’t help but come to the conclusion that Cato is simply a progressive institution pretending to be libertarian”

      When you look in the mirror do you see Susan Sarandon? Ralph Nader? Glenn Greenwald? I ask because their views are the mirror image of yours. According to them, Obama, Biden, the Clintons and their ilk are all essentially Republicans.

  17. omama’s national emergency orders had nothing to do with U.S. The southern border does in spades. He was more interested in protecting the borders of other countries than our own. How can you explain that.

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