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Once a Critic of Executive Power, Trump Is Now Taking Us Closer to Rule by Decree

Bargaining over policy is supposed to be frustrating. That’s a feature, not a bug, of limited government.

Jeff Malet Photography/NewscomJeff Malet Photography/NewscomIt's difficult to think much of an "emergency" that the president himself admits he declared just so he could get what he wants faster and without the muss and fuss of normal governing procedures. Unfortunately, President Donald Trump's declaration "that a national emergency exists at the southern border of the United States" just because neither house of Congress, under either major political party, has been impressed with his demands for funding for a border wall isn't an unheard of abuse of presidential authority.

Emergency declarations by tantrum-throwing wannabe American monarchs play a large and dangerous role in U.S. politics. In continuing that unpleasant tradition, Trump's action is less of a break from the past than a risky step toward a dictatorial future.

"Well, I got $1.4 billion. But I'm not happy with it," Trump told reporters in the Rose Garden when asked if he was declaring a national emergency just because Congress didn't give him as much funding as he wanted. "I could do the wall over a longer period of time. I didn't need to do this. But I'd rather do it much faster."

The president didn't get as much funding as he wanted? You know, in a political system designed with separation of powers and checks and balances, it's almost as if politicians frustrated by their inability to get all they desire are a feature of the system, and not a bug at all.

During the Korean War, President Truman also wanted something that wasn't his to unilaterally take—in his case, it was cheap steel for the cash-strapped government's military efforts. Subject to price controls, steel companies were disinclined to simultaneously supply that cheap steel and give wage hikes to Truman's organized-labor allies. The result was a strike—and resulting presidential attempt at nationalization "authorized" by a national emergency declaration intended as an end-run around both the normal governing process and the laws of economics.

"In order to assure the continued availability of steel and steel products during the existing emergency, it is necessary that the United States take possession of and operate the plants, facilities, and other property of the said companies as hereinafter provided," Truman insisted.

But, as the Supreme Court rapidly pointed out, "There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied." The court concluded that "this seizure order cannot stand."

That the president wants something really badly doesn't mean he's entitled to make it happen. If the desired goal can't win approval through the political process, there are no grounds for making it happen at all.

That's not to say that presidents can't declare emergencies and can't act under such declarations. Just since 1979, U.S. presidents have declared national emergencies 58 times, with 31 still in effect, according to New York University's Brennan Center for Justice.

The popularity of ruling through declarations of emergency was described by USA Today as a "perpetual state of emergency" in 2014, in an article that noted that Congress had never bothered to exercise its power to review the practice.

Trump's declaration is "a patent abuse of power, and it will generate a raft of legal challenges," notes Brennan's Elizabeth Goitein. "But thanks to a lack of checks and balances in our legal system for emergency powers, the success of these challenges is not the foregone conclusion it should be." She adds that despite the limited scope of the laws allowing for emergency declarations, and judicial scrutiny, "some of these emergency laws confer extraordinary powers that are ripe for abuse, including laws that allow the president to take over or shut down communications facilities and to freeze Americans' bank accounts."

"Poorly drafted laws give the president a wide range of easily abused emergency powers," agrees Ilya Somin, a law professor at George Mason University and adjunct scholar at the Cato Institute. He believes Trump is on shaky ground in claiming emergency authority to seize private property and use military resources to build a border wall. But he cautions that "too often, courts give presidents undue deference on security and immigration issues."

By and large, most legal experts agree that the president has the authority to declare an emergency, but not to use his declaration the way he intends—probably. That uncertainty comes, again, because of traditional judicial deference to alleged national security issues and to government action overall. It's a hell of a shaky nail on which to hang your constitutional hat.

Even some members of the president's own party see problems with ruling by decree.

"No. @POTUS can't claim emergency powers for non-emergency actions whenever Congress doesn't legislate the way he wants," Rep. Justin Amash (R-Mich.) tweeted.

"When the next Democratic President declares a national emergency over gun violence and takes executive actions to curtail gun purchases, you can thank the people urging Donald Trump to do the same with regards to the border," conservative commentator Eric Erickson warned.

Nancy Pelosi, the Democratic Speaker of the House, was more than happy to suggest that's exactly where she and her allies might take matters when they're back in the White House.

"You want to talk about a national emergency? Let's talk about today, the one-year anniversary of another manifestation of the epidemic of gun violence in America. That's a national emergency," she told reporters. "Why don't you declare that emergency, Mr. President? I wish you would… But a Democratic president can do that. Democratic president can declare emergencies as well."

If you're inclined to give any politician the benefit of the doubt, maybe you could argue that Pelosi is just warning of the dangers of unilateral executive action. But she didn't raise too many objections when President Obama, from her own party, inspired news articles explaining "how a U.S. president can rule by decree."

Just as telling, then-candidate Trump was a critic of the practice at the time, asking "Why is @BarackObama constantly issuing executive orders that are major power grabs of authority?"

Now, of course, Trump is a big fan of bypassing normal governing processes to impose his will by unilateral action. If he gets away with it, be prepared for rule-by-executive-order to grow in popularity as power-mad politicians exploit a handy detour around the deliberately frustrating limitations of constitutional government.

Photo Credit: Jeff Malet Photography/Newscom

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  • Don't look at me!||

    It's been done 58 times, but orange man bad.

  • Crusty Juggler||

    They did it first!

  • loveconstitution1789||

    Trump did it once, so Trump's worse!

    Trump took an oath of office —"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

    National defense and regulation of migrants are constitutional powers.

  • Agammamon||

    But they're not *his* constitutional powers.

  • loveconstitution1789||

    The Executive Branch enforces and executes the laws on the books.

    Since Trump is the President and head of the Executive branch, they are *his* Constitutional powers.

  • rocks||

    If Trump's wall order is illegal, then were does that leave DACA?

    Personally I hope SCOTUS overrules these orders, but does so in a manner that kills the prior ones as well. The liberal media would shout for joy at first, until they realized what it meant.

  • a ab abc abcd abcde abcdef ahf||

    Article 1, Section 9 again?

    For someone who quotes absolute phrases ("shall not be infringed") as gospel, you do a remarkably poor job of justifying immigration control. How about showing where the federal government gets its authority to control immigration?

    Article 1, Section 8: To establish an uniform Rule of Naturalization... To declare War ...

    Article 1, Section 9: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight ... I have never seen this used in any context but slavery, which is the only subject the Framers dodged, kicking the can down the road 20 years. They didn't dodge war or naturalization; why single out immigration, which was not contentious?

    14th Amendment, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

    9th Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Don't fall back on hand-waving about border control being too obvious to enumerate; it's hard to think of a natural right more obvious than self-defense.

  • a ab abc abcd abcde abcdef ahf||

    Most likely you'll just call me the alphabet troll again and never explain how Article 1 Section 9 applies. It fits your pattern of promising.

    loveconstitution1789|12.3.18 @ 10:20AM|#

    Do you need me to link the rules of NAFTA and USCMA so you can compare and contrast the "worseness" for us?
  • loveconstitution1789||

    Poor alphabet troll demands a response to nonsense that it posts.

  • JesseAz||

    This is idiotic every time you post it. Just a heads up.

  • Moo Cow||

    Donald J. Trump
    Donald J. Trump
    @realDonaldTrump
    Repubs must not allow Pres Obama to subvert the Constitution of the US for his own benefit & because he is unable to negotiate w/ Congress.6:36 AM · Nov 20, 2014 · Twitter Web Client

  • KevinP||

    If Reason were to bother to read the declaration, they would find that it relies upon Congressional statutes for its power.

  • loveconstitution1789||

    STOP! You are wrecking the narrative that Trump=Hitler

  • damikesc||

    STOP! You are wrecking the narrative that Trump=Hitler

    TECHNICALLY, Hitler did cite legal justifications for a lot of his actions. The Enabling Act gave him ridiculous power. The Reichstag Fire Decree gave his cabinet ridiculous power as well.

    I don't like Trump's emergency decree because I do not like any of them as a general rule. "Emergencies" lead to horrible laws (see that Fire Decree and Enabling Act I mentioned earlier for the gold standard in that)

  • loveconstitution1789||

    The Reichstag has enacted the following law, which is hereby proclaimed with the assent of the Reichsrat, it having been established that the requirements for a constitutional amendment have been fulfilled:
    Article 1
    In addition to the procedure prescribed by the constitution, laws of the Reich may also be enacted by the government of the Reich. This includes the laws referred to by Articles 85 Paragraph 2 and Article 87 of the constitution.
    Artikel 2
    Laws enacted by the government of the Reich may deviate from the constitution as long as they do not affect the institutions of the Reichstag and the Reichsrat. The rights of the President remain unaffected.

  • loveconstitution1789||

    (contd)
    Artikel 3
    Laws enacted by the Reich government shall be issued by the Chancellor and announced in the Reich Gazette. They shall take effect on the day following the announcement, unless they prescribe a different date. Articles 68 to 77 of the Constitution do not apply to laws enacted by the Reich government.
    Artikel 4 Treaties of the Reich with foreign states, which relate to matters of Reich legislation, shall for the duration of the validity of these laws not require the consent of the legislative authorities. The Reich government shall enact the legislation necessary to implement these agreements.
    Artikel 5 This law enters into force on the day of its proclamation. It expires on April 1, 1937; it expires furthermore if the present Reich government is replaced by another.

    I get what you're saying but the Nazis said Reich laws superseded the German Constitution.

    Let me know when Hitler Trump does that.

  • damikesc||

    I'm not saying Trump is exceeding anything. I don't love the emergency decrees, but his are no worse than the others.

  • loveconstitution1789||

    Trump's emergency are no worse than past presidents AND it is less severe in most cases as it applies to actual common defense to repeal an invasion.

  • Brett Bellmore||

    Statutes that were enacted AFTER Truman tried seizing those steel plants, which is why what he did wasn't particularly relevant.

  • a ab abc abcd abcde abcdef ahf||

    Guess you can't read either.

    Emergency declarations by tantrum-throwing wannabe American monarchs play a large and dangerous role in U.S. politics. In continuing that unpleasant tradition, Trump's action is less of a break from the past than a risky step toward a dictatorial future.

    Try rephrasing your TDS whine:

    It's been done 58 times, and orange man bad.
  • JesseAz||

    How is the 59th step the one that broke the camels back?

  • Delius||

    Your comment would make sense if this was the first time Reason complained about presidential overreach. It isn't.

  • ||

    But you have to admit it's troubling if this slipper slope does find its way into gun control and climate change.

  • Ray McKigney||

    It starts as a slipper slope, and next thing you know it's sleeping in the buff and walking around with the bathrobe open.

  • gah87||

    And *not* being a Kardashian.

  • JesseAz||

    When we pass a constitutional amendment declaring Congress shall make no law restricting the flow of foreigners you can bring up gun control as a comparison.

  • JFree||

    This is just a crappy dishonest use of stats by Tuccille with very predictable consequences among the morons.

    He wants to fearmonger the general use of this power - but in so doing, he actually minimizes the problem of this particular declaration.

    Here's the list of all the emergencies declared under that 1976 Act - the half dozen or so that preceded the act and are still apparently in effect - and the 58 declared since then whether ended or still active.

    All of those 58 involve either:

    a)sanctions against foreign govts or foreign govt officials for foreign activities (presumably to seize their assets in the US)

    b)continuations of export controls of arms and WMD's in response to lapses by Congress in renewing legislation re same

    c)9/11 aftermath which is at minimum a completely unexpected and unbudgeted event and/or a very legitimate definition of emergency

    d)this one by Trump

    Tuccille should be fucking ashamed of letting his generic fearmongering agenda undermine the very real issue here. This declaration IS a goddamn unique usurpation of executive authority and should god damn well be called out as such. FUCK YOU Tuccille for writing some bullshit like 'well everyone does it so this is just more of the same'.

  • loveconstitution1789||

    d) This one by Trump that he was duly elected to carry out, Congress funded a tiny portion of the billions needed to get serious about border security, and many Americans are demanding illegals be deported.

    If you look at the other "National Emergencies", many of them didn't have massive American support.

  • JFree||

    There is not one thing in the Constitution that says 'President should be given unlimited latitude to fulfill campaign promises because he has been duly elected'

    And whether or not 'many Americans are demanding illegals be deported' also has no Constitutional authority (and no relevance to this declaration either) because:

    a)the Constitution was designed to try to prevent tyranny of the majority
    b)the wall has fuckall nothing to do with existing illegals being deported.

    If you look at the other "National Emergencies", many of them didn't have massive American support.

    And AGAIN whether something has support or not is fucking irrelevant. If the support exists, then the Constitution assumes that will manifest either through elections to Congress OR the President - but not a unilateral declaration by one against the other.

    And what those other emergencies DO have in common is that they apply to FOREIGN POLICY where the Constitution does grant the Prez extra authority. Do I think those sanctions type things should be taken out of the Emergencies Act? Fuck yeah precisely because defining them as 'emergencies' creates precisely this sort of confusion about what the word means.

  • loveconstitution1789||

    Can we even agree that Common Defense includes protecting the US national border from non-Americans?

    How about To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;?

    You have every right to disagree with a wall being the way to handle illegals.

    Trump won and is supported by tens of millions of Americans who want the federal government to enforce immigration law, build a more secure border with Mexico, and deport as many illegals as possible.

  • JFree||

    Tens of millions of Americans want a full investigation into the connection between aliens at Roswell and the alleged deaths of Elvis and JFK.

    Whew. I said it. Now where's my $20 billion in taxpayer money.

  • Delius||

    Do you not realize that when you call undocumented aliens an "invasion", your argument loses any and all credibility it might have? An invasion is a Mongol horde looking to sack and despoil the capitol, not desperately poor people looking to improve their lives. I'd take 10,000 of those "invaders" over 10,000 MAGA-hatted morons any day of the week and twice on Sunday.

  • Cy||

    ORANGE MAN BAD!!!!

  • Cy||

    ORANGE MAN BAD!!!!

  • AlmightyJB||

    But it is fun

  • Entelechy||

    Who says climate change is not a wall?

    https://tinyurl.com/yxao743h

  • John||

    If a Democratic President wants to redirect military construction funds to building windmills and Congress does nothing about it, good for him. That will be legal as well. And it should be legal.

  • Mcgoo95||

    I hope they seize your land to do it on.

  • John||

    They could do that now. And to the extent I don't like it, Congress is just as to blame as the President. The problem would be the policy not the means that it is achieved.

  • loveconstitution1789||

    McGoop never said anything when government seizes land for interstates, rights of way for utilities, airports, and national pipelines.

  • ||

    They could do that now.

    They have been doing it for a while.

  • ConstitutionalDon||

    Thanks to Kelo, they can seize your land and give it to someone who deserves it more than you.

  • Fats of Fury||

    And then do nothing with it.

  • Tony||

    You exist to vex me, don't you?

  • loveconstitution1789||

    Tony, you are constantly vexing all of us.

  • ThomasD||

    I find tony about as vexing as a hole in an old sock.

  • Tony||

    And old sock with a hole in it should simply be thrown away. What do we employ Asian children for if not disposable underclothes?

  • Fancylad||

    Nobody hates children like Tony.

  • loveconstitution1789||

    If Tony and his friends cannot turn them into little Nazis, then they might as well be worm food.

  • JesseAz||

    are Asian children the subset of humans you wish to enslave so you dont have to work tony?

  • TrickyVic (old school)||

    ""Tony, you are constantly vexing all of us."'

    He can't vex you if you don't pay attention to him.

  • Earth Skeptic||

    Combat windmills?

  • Ray McKigney||

    Did you find that blog or create it? (If you don't mind my asking)

  • Crusty Juggler||

    traditional judicial deference to alleged national security issues and to government action overall. It's a hell of a shaky nail on which to hang your constitutional hat.

    It's okay when my team does it.

  • John||

    Trump said he planned to do this. If Congress had a problem with it, they could have put language in the funding bill that prevented it. The fact that Congress could have but did not, makes the argument that this is rule by degree very unpersasive.

    In the end, the is Trump using money that has already been appropriated by Congress for a slightly different purpose pursuent to a declaration that Congress could have preempted but chose not to do so. It is also money that is only good for this year. Next year, Congress is once again free to either end the emergency or restrict its use.

    Reason doesn't like this because they hate any kind of border security. And that is fine. What is not fine is dishonestly pretending this is some kind of unprecident uspuration of Congressional power.

  • Crusty Juggler||

    Reason doesn't like this because they hate any kind of border security

    That's not the reason, John.

  • John||

    That is totally the reason. If reason cared about Presidental abuse of powers, it would not have supported DACA. Its support of DACA says that they love exectutive power just so long as it does something they want. And if Trump were declaring an emergency and using the funds to bring refugees into the country, Reason wouldn't have a problem with it.

  • loveconstitution1789||

    +100

    DACA was a presidential decree but it helped illegals....so Reason is for it.

  • a ab abc abcd abcde abcdef ahf||

    So you are always in favor of obeying legislation? All legislation is good and proper, and always must be always obeyed?

    Fuck off, slaver.

  • John||

    Fuck off you idiot. I am in favor of obeying the law unless the law is so immoral that it can't be obeyed in any moral way. Sorry but the President reprograming defense money to defend the border is not the fugitive slave act you histrionic moron.

  • a ab abc abcd abcde abcdef ahf||

    You complained about Obama doing the same thing.

    Wrong Principal, no Principles.

  • loveconstitution1789||

    Poor Alphabet troll does not understand that following the Rule of Law does not mean mindlessly obeying all laws.

    Anarchists also have a tough time with the concept of Rule of Law since they dont want government around. They want both gone.

  • Libertymike||

    Some anarchists posit that there can be no rule of law where the king is the sole arbiter of the same.

  • Zeb||

    Yeah, it's not so much that anarchists have a hard time with the rule of law as a concept. They just don't think it's a real thing.

  • loveconstitution1789||

    The USA was founded on the Rule of Law, instead of Rule of Man (King George).

    The fact that some Americans don't want to keep their government in line, was a foreseeable failure of this Republic by the Founders.

    "The Constitution only gives people the right to pursue happiness. You have to catch it yourself."

    "They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

    "In my youth, I traveled much, and I observed in different countries, that the more public provisions were made for the poor, the less they provided for themselves, and of course became poorer. And, on the contrary, the less was done for them, the more they did for themselves, and became richer."
    -Benjamin Franklin

  • a ab abc abcd abcde abcdef ahf||

    Obama - wrong principal, so principle wins.
    Trump - right principal, so principle loses.

  • loveconstitution1789||

    The right principal is protecting the USA over the wishes of non-Americans.

    The right principal is using defense funds to build said fortification the Commander-in-Chief deems necessary to protect the USA from invading hordes of non-Americans.

  • a ab abc abcd abcde abcdef ahf||

    Principal over principle all day long ... as long as it's the right principal.

  • loveconstitution1789||

    MAGA is the right principal.

  • JFree||

    DACA was simply an executive order. Which have become a problem but are a completely separate animal from a declaration of emergency.

    You know it. Yet you defend pretending they are the same thing. Which makes YOU an enemy of the Constitution.

  • Tu­lpa||

    "THIS usurpation of power is totally different and far worse than THIS OTHER usurpation of power because I said so"

    Literally what you just wrote.

  • John||

    This is a enumerated power given to the President by statute. An EO exercising a power that doesn't exist in the code is much worse.

  • damikesc||

    Well, except courts won't allow the following executive to repeal the DACA order...so, apparently, it is not an executive order any more.

  • loveconstitution1789||

    ^this damikesc.

    If DACA was a simple EO, then Trump should have been able to repeal it like all the other EOs he repealed.

    The Courts deemed the DACA EO like some contractual legislation coming from Obama.

    Not a fucking peep from Reason about how outrageous it is that Obama gets to create national law.
    Reason: DACA topics

  • JFree||

    No - it is an executive order. Yes I agree that it is always more difficult to repeal a state/condition of 'sanctuary' (which is what DACA actually is) than it is to create one. Because it dances around both the Presidential power to pardon and the rules against retroactivity in law.

    The solution is NOT to violate the Constitution - about something that has absolutely zero relevance to DACA anyway.

  • loveconstitution1789||

    You still have not explained how using national defense funds to build national border security obstacles is a violation of the Constitution.

  • JFree||

    Art1 Sec8:
    To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

    Federal territory is NOT exclusive Presidential territory. And any private property that will be used for the 'erection of needful buildings' must first be purchased BY Congress with the explicit consent of the state legislature at which point it then becomes federal territory and is STILL not Presidential property.

    This is NOT a CinC responsibility.

  • loveconstitution1789||

    Of course, Congress does have exclusive LEGISLATIVE authority for D.C. and erection of federal assets.

    I often see Congressmen out building forts, Magazines, Arsenals, dock-yards, etc.

    Legislative authority is not same as carrying out the legislation which is why we have an Executive Branch.

    So, once again, what unconstitutional thing is Trump doing by taking appropriated money for national defense and building a national security system of obstacles?

  • damikesc||

    No - it is an executive order. Yes I agree that it is always more difficult to repeal a state/condition of 'sanctuary' (which is what DACA actually is) than it is to create one. Because it dances around both the Presidential power to pardon and the rules against retroactivity in law.

    Except it wouldn't apply with DACA. There is no implicit pardoning power in using prosecutorial discretion in not prosecuting a crime. Nobody is saying "We are forgiving this crime", it is specifically "We are IGNORING this crime".

    And there would be no retroactivity in the law --- if they are STILL illegal the moment DACA ends, it is STILL a crime. If they became legal before DACA ends, then their illegal status before the end would be immaterial.

  • JFree||

    Nobody is saying "We are forgiving this crime", it is specifically "We are IGNORING this crime".

    First, those people were defined in a way that NO COURT IN THE LAND would deem them guilty of said crime. A child who is carried into a bank by their bank robber parents is never going to be judged guilty of bank robbery.

    It also created a means by which those people would apply for eligibility to BECOME legal. Which would in fact mean the condition of being illegal would cease and they would become legal. If the repeal USES that eligibility list to then target people for deportation, then it is absolutely the problem I describe. And that is really the legal question at issue re those court cases - because statements/memos by Trump/WH/AG/etc indicate that that is what they intend to focus on re deportations.

    eg this memo - In general, individuals who will no longer have DACA will not proactively be referred
    to ICE and placed in removal proceedings unless they satisfy one of the Department's
    enforcement priorities.
    Well golly if you can't drive a truck through that 'trust us' statement, then you suck at driving trucks.

  • JFree||

    That memo itself admits that DHS/ICE does have enforcement priorities. And if they are saying instead that DHS/ICE enforcement will now be changed to be 'deport everyone with no priority', then those eligibility lists will satisfy the new enforcement priorities and will in fact become the easy low-hanging fruit for mass deportations.

    Which BTW - exacerbates the ACTUAL problem re deportation/asylum hearings now - which is the massive backlog of them. Which Trump doesn't seem to give a shit about cuz he is fixated on that fucking wall.

  • damikesc||

    That memo itself admits that DHS/ICE does have enforcement priorities. And if they are saying instead that DHS/ICE enforcement will now be changed to be 'deport everyone with no priority',

    So, they are saying that they have a priority and spelling out what the priority is. What, precisely, is the problem? If the priority is ZERO tolerance, c'est la vie. If it is total tolerance, also, c'est la vie.

    instead that DHS/ICE enforcement will now be changed to be 'deport everyone with no priority', then those eligibility lists will satisfy the new enforcement priorities and will in fact become the easy low-hanging fruit for mass deportations.

    It is illegal because you think something might happen?

    Which BTW - exacerbates the ACTUAL problem re deportation/asylum hearings now - which is the massive backlog of them. Which Trump doesn't seem to give a shit about cuz he is fixated on that fucking wall.

    Perhaps having thousands approach the border at once demanding asylum might lead to those. You don't solve a problem of too many murders by simply making murder legal.

  • JFree||

    Perhaps having thousands approach the border at once demanding asylum might lead to those.

    That's what IS happening now you fucking dimwit. All those people from Central America are going straight to the border posts and asking for asylum. They are not trying to EVADE anything. This has in fact been the entire border immigration problem since about 2006 or so when they finally did build those sections of wall that were necessary to prevent crossings by those trying to evade the CBP.

    But the backlog of immigration cases has gone from 202,000 in 2006 to 437,000 in 2015 to 819,000 now. Adding 700,000 DACA folks does nothing but add 700,000 more names to that backlog. It doesn't clear the backlog. And the backlog is why those claiming asylum or caught by CBP now have to be released - cuz that backlog is now approaching 2 years.

    The WALL is rhetorical bullshit aimed at pretending to solve a 1990's immigration problem to people who are too fucking stupid to know what century we are in now.

  • damikesc||

    First, those people were defined in a way that NO COURT IN THE LAND would deem them guilty of said crime. A child who is carried into a bank by their bank robber parents is never going to be judged guilty of bank robbery.

    They would ALSO not be allowed to gain the benefit of the crime. Even if doing so made them poor, they wouldn't be able to keep the money.

    It also created a means by which those people would apply for eligibility to BECOME legal.

    EO lack the authority to alter naturalization policy. There was already legislation on the book that dealt with it. Obama might be able to say "We will ignore you being here" --- he did NOT have the power to say "Oh, and we will ALSO legalize you in the process".

    Which would in fact mean the condition of being illegal would cease and they would become legal. If the repeal USES that eligibility list to then target people for deportation, then it is absolutely the problem I describe. And that is really the legal question at issue re those court cases - because statements/memos by Trump/WH/AG/etc indicate that that is what they intend to focus on re deportations.

    Perhaps they shouldn't trust things that were illegal to offer? Maybe just maybe.

  • JFree||

    EO lack the authority to alter naturalization policy.

    DACA has nothing to do with naturalization. The whole 'path to citizenship' stuff requires legislation - unless of course Trump decides to expand his executive usurpation to strip citizenship from people he doesn't like. Which will no doubt be defended by the asshole commentariat here.

    DACA has to do with CLEMENCY re immigration documentation. And yes - clemency (defined by the SC broadly as commutations, reprieves, amnesties, conditional commutations, remissions, etc) is a specific Prez power. So the question is did he grant clemency or conditional clemency - and can a future Prez then reverse that clemency and use that previous state of clemency to in fact TARGET those given that for selective enforcement.

  • damikesc||

    DACA has nothing to do with naturalization.

    What do you think It also created a means by which those people would apply for eligibility to BECOME legal. means? It was a procedure to legalize which, lo and behold, EO have precisely zero power to do.

    The whole 'path to citizenship' stuff requires legislation

    ...but courts are ruling that Trump cannot opt to not pursue that and end the program? If it is an EO --- why can he not do so?

    DACA has to do with CLEMENCY re immigration documentation. And yes - clemency (defined by the SC broadly as commutations, reprieves, amnesties, conditional commutations, remissions, etc) is a specific Prez power.

    No, it is not a clemency action. It is simply ignoring a crime. If the next guy decides that they do not wish to continue, there is no clemency issue. It's like saying "Well, because Clinton's FTC didn't do shit about the problems of accountants and 'creative' accounting of corporations (read Enron, Global Crossing, etc) and the like during the 90's, Bush cannot either because it violates Clinton's clemency powers".

    That is patently insane. Prosecutorial discretion is, you know, discretion. It is not set in stone statute. Trump's discretion is not the same as Obama's

    So the question is did he grant clemency or conditional clemency

    There is a way to do it.

    He did not do it.

    Thus, he did not do it.

  • JesseAz||

    Jfree... I dont know if you're completely retarded but I'll try to explain it to you. The majority of DACA recipients came to this country after the age of 15. Of a 15 year old was involved in a bank robbery he would indeed be prosecuted.

  • Mcgoo95||

    "The majority of DACA recipients came to this country after the age of 15."

    Bullshit. EVERY DACA Recipient came to the U.S. before the age of 16. Fuck you're dumb. From Pew:

    Those 25 and younger make up two-thirds of active DACA recipients – 29% are ages 16-20 and 37% are ages 21-25. About a quarter (24%) are ages 26-30, while one-in-ten (11%) are ages 31-36. (No DACA recipients are older than 36 because the program required applicants to have entered the U.S. before their 16th birthday and have been under the age of 31 as of June 15, 2012.)

  • JFree||

    It doesn't matter since all this shit about DACA is you R asswipes diverting attention from Trump voiding posse comitatus and the constitutional means of acquiring territory for federal structures

  • Teddy Pump||

    EXACTLY! And not only that, but Trump was the one who wanted to end DACA & throw it back to Congress to properly make it Constitutional by making it a proper law!

    This whole notion that what Trump is doing it dangerous & unconstitutional, BLAH, BLAH, BLAH is pure nonsense!.. That is why there are courts to decide these things...Hey, I hated Obummy & his policies & he was struck down by courts more than any other prez, but I do not fault him for trying to get his agenda through!

    BTW, where were the LIB pols & pundits when Obummy unilaterally made unconstitutional war all over the Middle East & N. Africa?

  • Mcgoo95||

    "Next year, Congress is once again free to either end the emergency or restrict its use."

    You've said this before and I'm still not sure its correct. From what I understand, to end a National Emergency, it requires a Joint resolution to which the president must sign and has veto power over. I think that means he can continue the emergency as long as he sees fit unless congress can achieve a veto-proof supermajority. Is that not correct? Further, I believe to reprogram funds, all he needs is the SecDef to approve, not congress under 33US code 2293. Is this not correct?

  • John||

    You can do it that way. And yes Trump can veto it. But you can also just put language into any funding act that says the money under the NEA can't be used to build a border wall. Yes, Trump could veto that too but doing so would shut down the government. Congress is free to change the law or change the appropriation. Yes, it needs the President's signature, but so does every other expendature. Whether they get it or whether they override his veto is a political matter.

  • Mcgoo95||

    Makes sense. Thanks for the explanation.

  • John||

    You were right. I thought they coudl do it by resolution but they can't. Still the fact that they as part of the funding deal agreed not to override the emergency funding power is reasonable evidence that Congress approves of it. The fact is the Democrats don't want to stop the wall. They just want it funded in a way that allows them to avoid blame.

  • Mcgoo95||

    I guess, ulitmately, it comes down that they can just (partially) shut down the government until they agree. Seems to really be the only recourse....which I guess, isn't that different than now.

  • Mcgoo95||

    Although I think this also means that they would have to shut down the DoD, which will not happen. I believe this means that the President and SecDef could still get funds from the defence department per 33US code 2293, so actually I go back to my previous position that this is an absolute power grab and congress is completely powerless to stop it. Hope I'm wrong.

  • loveconstitution1789||

    Democrats have already funded some of the existing 700 miles of border obstacles.

    Democrats doubled-down on not letting trump accomplish his campaign promises since that would mean that voters now expect politicians to fulfill their campaign promises.

  • Mcgoo95||

    Thanks for irrelevant bloviation.

  • loveconstitution1789||

    Poor mcgoop troll. Always sad.

  • Mcgoo95||

    weak

  • ||

    If Congress had put language in the funding bill that prevented it, Trump would more than likely have threatened a veto, just as he is now planning to veto the resolution to block his emergency declaration now in Congress.

    So, no, in fact, Congress could not have put language in the funding bill that prevented it.

  • John||

    Yes, he could have threatened a VETO and Congress could have overiden it. And the govenrment would have remained in partial shut down. That is how the system works. The President gets a say just like Congress. The fact that it takes a law to change this law doens't make Trump wrong for invoking this law. The law says what it says.

  • damikesc||

    Yes, they could have, They could have allowed the government to shut down again. They are under no obligation to give Trump what he wants any more than he is obligated to sign a budget he opposes.

    "Because it is hard" is not the same as "Because it is impossible"

  • Zeb||

    You are right that congress needs to get off its ass and assert its proper powers.
    But while this may be legal, I think it violates the spirit of the whole idea of separation of powers. Congress declined to fund what the president wanted. The president should accept that or try to convince congress to do something different.

  • John||

    Congress declined to fund what the president wanted.

    Congress knew he was going to do this and chose to not force any language into the bill to prevent it. Congress also passed the law that enables it. Given those facts, how can you say Congress refused to fund it? It looks to me like Congress refused to fund it through DHS but wanted it funded with DOD money. Otherwsie, they would have said so.

  • Zeb||

    I suppose that could be true. Democrats in congress are at least as full of shit as anyone here.

    I'm not trying to make any comparisons with anyone else. Just saying that this is shady and balance of powers isn't working right.

  • loveconstitution1789||

    Of course Congress knew. Republicans knew. Democrats voted for the defense budget for FY2019.

    They passed extra money in the defense budget for this.

    Even RINOs knew that stepping out of turn when Trump was owning the Democrats during this border fence showdown would result in being kicked out of office. So they voted for the extra money in the defense budget and the Lefties never even saw it coming.

  • JFree||

    BS John.

    This declaration is an attempt by Trump by bypass the enumerated power of Congress to legislate.

    And you know it. And defend it. Which makes YOU as much of an enemy of the Constitution as Trump is now.

  • Tu­lpa||

    Ok now it's pretty clear you're just emoting.

  • loveconstitution1789||

    Congress gave the Executive Branch this power. That is how the Constitution is set up to work.

    Congress.gave.this.power.via.legislation

  • Mcgoo95||

    ...and if they were smart, they'd be working, as we speak, to form a veto-proof supermajority to rescind it as it is NOBODY's best interest to give this kind of power to the executive branch. It very well could be the road to hell.....or not. Of course, that's my opinion.

  • loveconstitution1789||

    That is certainly Congress' prerogative.

    Until then, Congress appropriated $1.7 billion for a border fence and hundreds of billions in defense dollars to protect the USA.

    Trump is using appropriated defense dollars to protect the USA.

    Thanks Trump!

    Maybe Congress will learn their lesson and line item appropriate all federal money. Win-win-win for reduced budgets.

  • Delius||

    So because Trump threatens to do something stupid, it is Congress' fault for not doing that stupid something first to keep him from doing it? Do you have any idea how fucking stupid that statement is?

  • John||

    And if and when a President Pelosi acts by degree, JD Turcille will think it is great just like he thought DACA was great. Reason gave away all of its credibility on the issue excectutive power when it supported Obama on DACA. Reason needs to stop kidding itself and pretending they are fooling anyone by claiming principled objections to this.

  • Mickey Rat||

    It is not uncommon for ideologues to damn proper procedure when it goes against them. Reason's staff has eschewed procedure when their pet projects are at stake. That makes the argument that the forms must be obeyed when their project is in threatened a bit hard to swallow.

  • John||

    Very hard to swallow. Illya Somin was on Volkh last week complaining in so many words that courts give the President too much deference on immigration law. Somin was 100% behind DACA. For him to know complain about the President having too much power and deference on immigration law is pretty rich. Reason is just telling its readers FYTIW on this issue.

  • loveconstitution1789||

    +100

  • Zeb||

    Has Tucille commented on DACA? I can't recall anything.

  • loveconstitution1789||

    J.D. Tuccille

    Only goes back to July 3, 2018

  • John||

    REason didn't publish a single word against DACA I ever saw. No way in hell did he object to it.

  • Zeb||

    You claimed he thought it was great, not that he didn't explicitly object to it.

  • Tu­lpa||

    He wrote this article but nothing on DACA. That's tacit support.

  • Zeb||

    That's a large and unfounded assumption on your part.

    It's also possible to like DACA as a program, but not to like how it was put into place.

  • Tu­lpa||

    I don't think it is. He has basically free reign to write about whatever he wants. He wrote about this to voice his displeasure. If he had any objections to DACA, nothing is stopping him from speaking up.

    And he didn't. That's evidence. Reading it as tacit support isn't at all unreasonable.

  • Tu­lpa||

    Also, the search function returns incomplete results, so it's entirely possible he did write about this. I was simply extending John's hypothetical.

  • Uncle Adolf’s Gas and Grill||

    We all know Reason has been fishing for reasons to dis Trump's emergency declaration. Looks like 2chilli done caught himself a minnow.

  • Crusty Juggler||

    It's almost as though if unilateral executive power has been a problem for that guy Reason in the past or something.

  • Nardz||

    Crusty, when did you become such a water carrying little bitch?
    Have you always white knighted for the shills here and I didn't notice, or have you changed your posting habits?

  • Crusty Juggler||

    You post whiny comments on a website that you disagree with.

  • Idle Hands||

    meet the new boss, same as the old boss. Maybe oranger though and definitely more humorous.

  • John||

    The heart of the matter is whether you consider the border to be a national defense issue. If you do, then reprograming DOD construction money to build a wall is not outside the law. If you don't, then Trump's actions are much more objectionable. Suppose Trump invoked this act to fund health insurance programs at HHS or give subsidies to some steel company in Pennsylvania. That would be much harder to defend and much more obviously an abuse of discretion.

    On the other hand, suppose the Mexican Army were attacking Texas and he diverted these funds to build fortifications along the border. I imagine reason would still object to that but few others would. So, the question is whether a border wall is like the fortifications or like funding HHS. To people like reason who don't generally recognize borders or do only to the minimum extent possible, it is like funding HHS. But, to people who do support borders, it is more like fortifications.

  • Zeb||

    You think Reason would object to defending against and actual invading army?

    Here's a crazy idea. How about congress decides what the federal government is going to spend money on and then the executive spends money on those things.

  • John||

    They already did Zeb. And they said the money could be used for defense projects including projects the President deemed necessary in case of an emergency.

    You keep reading the National Emergency Act out of the law because you don't like what Trump is doing it. Too bad Zeb. That is the law too and it was passed by Congress and is just as valid as any law that gives you what you want.

  • loveconstitution1789||

    +100 John

  • Zeb||

    I tend to object to a lot of things presidents declare as "emergencies". Because a lot of the time it's bullshit and a way to work around the legislative process that is supposed to happen. Congress needs to do it's job and rein in the president. That's my main point here. I don't expect it to happen, but that's the big problem. Would be nice if some of our local "constitutionalists" here would be a little more consistent rather than just looking for hypocrisy in others. Yes, what Trump is doing is likely legal. That doesn't mean it's good for a modest and constitutionally constrained government. I'm not just saying "Trump bad" here. Congress is just as much a part of the problem.

  • loveconstitution1789||

    The hordes of illegals and blatant conspiracy to violate immigration law is an emergency.

    The law emergency was probably September 11, 2001.

    The last emergency before that was probably Pearly Harbor.

    Notice any trends?
    Hint: Attacks on American sovereignty.

  • Zeb||

    Well, I think you are wrong and immigration is not an emergency or an attack on American sovereignty.
    I don't think we are going to settle the disagreement here.

  • Zeb||

    "Hordes of illegals" have been crossing the southern border for decades. I don't see how something that has been going on for that long can be considered an emergency. Particularly considering that most of the illegals are just looking for work and can easily find people who want to employ them. It may be a problem in need of a solution, but it's hardly an emergency.

  • loveconstitution1789||

    Its been an emergency for decades and nothing was done about it. Trump is wanting to do something about it.

    Kind of like North Korea's threats to nuke the USA are an emergency but Lefties are fine with it.

    emergency
    emer·​gen·​cy | \ i-ˈmər-jən(t)-sē\
    1 : an unforeseen combination of circumstances or the resulting state that calls for immediate action
    2 : an urgent need for assistance or relief

    Trump is trying to solve the urgent need for assistance or relief from hordes of illegals.

  • Zeb||

    I'd call both of those things problems but not emergencies. Emergencies are emergent. You leave an emergency long enough and it's no longer an emergency.
    Emergency powers exist so that when something happens and there is no time for debate or to wait for congress to act something can be done quickly. That is simply not the case with something that has been going on for decades. Acting today or in a year really makes little difference to the current immigration situation.

  • Nardz||

    "He's been choking on that chicken bone for minutes. Thus, it's not an emergency."

  • Mcgoo95||

    That was a terrible analogy. He'd be dead...because it's an emergency.

  • loveconstitution1789||

    Zeb, its clear your "constitutionalist" argument is anything but that.

    We get that as an anarchist, you want open borders because there should be no government.

  • Mcgoo95||

    And it's quite obvious that you're an authoritarian, as long as your TOP MAN is in office. Sad.

  • Jerryskids||

    The heart of the matter is whether you consider the border to be a national defense issue.

    No, the heart of the matter is whether you believe Top Men are okay as long as they're the right Top Men. It's a matter of principle and "it's okay when my team does it" may be a principle but it's a shitty principle.

  • John||

    Try at least trying to read the statute Jerry. The heart of the matter for you at least seems to be your inability to understand any issue beyond "Orange man Bad".

  • ThomasD||

    It's the same phone, but a different pen.

  • Red Rocks White Privilege||

    Eliminating the reforms of the progressive era (particularly the Constitutional amendments of the Wilson era), which ushered in the government model of a "strong executive" coupled with hyper-democracy, would go a long way to mitigating these abuses of power.

  • JWatts||

    "Emergency declarations by tantrum-throwing wannabe American monarchs play a large and dangerous role in U.S. politics. In continuing that unpleasant tradition, Trump's action is less of a break from the past than a risky step toward a dictatorial future."

    Trump is wrong to do this, but "tantrum-throwing wannabe American monarchs" is a click bait line that undermines your argument. Trump may have thrown tantrum's but it's clear in this case that he's been working towards this end for months. It's not a sudden decision.

    Furthermore, despite all the rhetoric, his actions are not clearly illegal or Constitutional. Your own article admits that:

    "By and large, most legal experts agree that the president has the authority to declare an emergency, but not to use his declaration the way he intends—probably. "

    I expect this will go to the Supreme Court. We'll see what they decide.

  • JWatts||

    "his actions are not clearly illegal nor un-Constitutional."

  • John||

    Congress and the President get a vote on what the Constitution means as well. Ultimately, if Congress refuses as a body to override this or use its power of the purse to force the President to agree to stop, then it is hard to see why the courts should step in on Congress' side. As the article admits, it is a reasonable call on both sides. We have elections and a seperation of powers to solve close calls.

  • ||

    John, you need your own show or youtube channel.

    Or you could be Skip Bayless to Nick Gillespie on Reason TV roundtable talk show.

  • John||

    Thanks Rufus.

  • Zeb||

    Yes, this isn't a place for the courts to step in. Congress needs to do it's fucking job.

    I think you are probably right. Democrats have no problem with the spending on border stuff. The wall is pure symbolism. If they really mean it and are opposed, they need to legislate accordingly.

  • loveconstitution1789||

    Sorry but the GOP and Trump are in charge of The federal government right now.

    We sent them there to build a wall.

    Thanks Trump!

  • JeffreyL||

    All congress needs to do is pass a law that removes the NEA. It may need to overcome a veto, but then that just means it needs more votes. Not impossible.

    This problem is inherently a problem created by congress. It is up to congress to solve this problem.

  • Agammamon||

    That caption picture - moron, we know climate change is not a wall.

  • Earth Skeptic||

    Build a wall to keep out the climate?

  • ||

    "When the next Democratic President declares a national emergency over gun violence and takes executive actions to curtail gun purchases, you can thank the people urging Donald Trump to do the same with regards to the border,"

    Didn't Ilhan (Minnesota's finest it appears) already say as much but for climate change?

  • Red Rocks White Privilege||

    There's already counties in New Mexico and Washington state telling the proglydytes in the state houses to go fuck themselves on their new gun control laws.

    Pelosi and any Democratic president are deluding themselves if they think they'll be able to enforce an emergency declaration on gun bans.

  • TrickyVic (old school)||

    Using an emergency to usurp a Constitutional right is whole other ball game.

  • John||

    You don't get to take any exectutive actions because of an emergency. You get to take a specified list of actions under the statute. So, what authority under the NEA gives the President the right to stop gun sales? None that I can seee.

    It would be nice if people would try reading the damned statute before commenting on it.

  • JeffreyL||

    Can we get the lawyers from V to do an article III standing write up. I would be interested in the arguments for and against actual and potential lawsuit plaintiffs outside of persons/entities that are subject to having their property seized as I would assume these parties have direct article III standing.

  • John||

    Anyone who has their property seized has standing. The problem is that Congress did appropriate $1.9 billion dollars to build the wall. On top of that 1/3rd of the land to be fenced is federally owned land. This is effectively two seperate wall building programs. One run by DHS and funded by the $1.9 billion and the other run by DOD and funded by the reprograming. So, what they will likely do is have DHS build the wall on areas where ED is needed and DOD build the wall on the federal property. The land owners can complain about the ED using the appropriated funds but they won't get very far doing so. And no one that I can think of will have the standing to sue of federal funds being use to build a wall on federal property.

  • loveconstitution1789||

    Trump wanted Congress to at least appropriate a few dollars to build a border fence.

    This way, when the SCOTUS decides in favor of trump, it will be 3 Branches of government vs 0.

  • Jerryskids||

    Trump Is Taking Us Closer to Rule by Decree

    Alternate headline: Trump Makes It Ever More Obvious That The Rule Of Law Is A Sad, Pathetic Joke

  • John||

    Jerry,

    If you knew what the law said, your statements about the rule of law would be more convincings. Just saying.

  • jcw||

    Listen guys, just claim to never say something and then when someone posts incontrovertible proof that you did say it just respond with "fine I changed my mind, who cares?" it's the John defense and it works 100% of the time! It's almost like you can't ever be wrong, how incredible!

    We will hear it again in a few years when the president is the bad guy. Remember the last one "pissed on the american people" when he skipped scalia's funeral. How john wakes up without his head exploding from cognitive dissonance is beyond me.

  • loveconstitution1789||

    Very convincing. Your citation illustrated your comment perfectly.

  • John||

    I never changed my mind on anything you half wit. Obama invoked this same statute multiple times and I never said a word about it nor thought he was wrong when he did so.

    Just because you are too stupid to understand what is going on here and incapable of seeing anything other than the most crude distinctions doesn't mean everyone else is. You clearly have no fucking idea what is going on here and just don't like Trump and want to scream about how you don't. That is great but really no one gives a shit and it adds nothing to the conversation.

  • E Blackadder||

    "Trump's declaration is "a patent abuse of power, and it will generate a raft of legal challenges," notes Brennan's Elizabeth Goitein. "But thanks to a lack of checks and balances in our legal system for emergency powers, the success of these challenges is not the foregone conclusion it should be.""

    If there is a "lack of checks and balances in our legal system for emergency powers," then how, praytell, can the emergency declaration be "a patent abuse of power?" How can one "abuse" a power, patently or otherwise, that has no limitation on what constitutes "proper" use?

    I agree with what others have said: Congress created the problem, Congress can fix it.

  • chipper me timbers||

    Is global warming really a national emergency? I think not.

    PS "Climate change" is a weasel word for those who worry that "global warming" won't really happen or have a big effect. Now with "climate change" all bad things that happen can be blamed on some nebulous unspecified cause.

  • Enjoy Every Sandwich||

    Now, of course, Trump is a big fan of bypassing normal governing processes to impose his will by unilateral action.

    Hmm. Sounds like the power of the presidency ought to be reined in. Unfortunately, there is no constituency for that. Even the most venomous Trump-haters don't want that to happen. They want the powers left intact. Gee, I wonder why.

  • Mcgoo95||

    Because Pelosi et. al. are already licking their lips for when they get to play the same game.....which is why I hope the Supreme Court rules on what actually constitutes an "emergency" and smacks this down.

  • Truthteller1||

    The author is either not old enough to remember Obama. GTFO.

  • Nuwanda||

    Man, are these Reason staff sorely triggered by anything border related. Vote Democrat!

  • Liberty Lover||

    You need to understand, my executive orders are okay, your executive orders are not. Why is that so hard to understand?

  • AD-RtR/OS!||

    Even if he ran at full speed, and wanted to, he could never get as close as Bumbles did in his 8-years.

  • Echospinner||

    "The Space Force is a very important part of my administration,"
    Donald Trump

    Your administration.

    Thank goodness we have that going for us.

    One good thing he agreed to fold it back into the Air Force where it was to begin with.

  • jerryg1018||

    Reason never complained about Obama issuing executive orders.

  • Liberty Lover||

    You need to understand, my rule by decree is much different than those others that tried to rule be decree. The others were just wrong, my decrees are needed.

  • atheistrepublican||

    What about, "If Congress won't act, I have a pen and I have a phone"?

  • killboyumeed847548588||

    How is the 59th step the one that broke the camels back?

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