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Trump’s Phony Yet Legal Border Emergency

Congress seems to have authorized this end run around its spending power. Can it do that?

Members of Congress who are dismayed by Donald Trump's invocation of emergency powers to build his border wall are like the dog owner who leaves the gate open and is then surprised to find his Labradoodle bounding around the neighborhood. He might have hoped the dog would stay in the yard without external restraint, but it was not a reasonable expectation.

A lawsuit filed by California and 15 other states on Monday argues that there is "no objective basis for President Trump's Emergency Declaration" and that "by the President's own admission, an emergency declaration is not necessary." Even while declaring a border-related national emergency on Friday, the complaint notes, Trump conceded that "I didn't need to do this," since "I could do the wall over a longer period of time." But he added that "I'd rather do it much faster."

Although an emergency that is not urgent may seem like a contradiction in terms, that does not mean it is illegal. Under the National Emergencies Act, a 1976 law that was supposed to constrain the president's exercise of extraordinary powers, an emergency is whatever the president says it is. It need not be sudden, pressing, harmful, or of limited duration.

The fact that the president can create an emergency by the stroke of a pen, without regard to objective circumstances, is rather alarming in light of all the legal provisions that give him or his appointees special powers once he has done that. The Brennan Center for Justice has cataloged 123 of them, including the power to freeze bank accounts, to take control of the internet, and to "suspend a law that prohibits the testing of chemical and biological weapons on unwitting human subjects."

In this case, Trump is relying on 10 USC 2808, which authorizes the secretary of defense, in the event of a national emergency "that requires use of the armed forces," to "undertake military construction projects" that are "not otherwise authorized by law" when they "are necessary to support such use of the armed forces." While it's debatable whether Trump's desire for border wall money that Congress denied him meets those criteria, it is not clear that anyone but the president gets to make that call.

California et al. argue that Trump's end run around the legislative branch's exclusive authority to appropriate taxpayers' money "violates the separation of powers doctrine." But if so, it's a violation that Congress itself seems to have authorized.

Can Congress do that? The nondelegation doctrine, a long moribund principle that prohibits one branch of government from passing off its responsibilities to another, suggests Congress cannot.

The Supreme Court has not invalidated an act of Congress as a violation of the nondelegation doctrine since the New Deal. But the justices recently heard a case that invites them to put some teeth into the rule, which historically has been invoked far more often than it has been enforced.

Herman Gundy, who was convicted of sexual assault in 2005, is challenging retroactive application of a federal law that penalizes sex offenders who fail to comply with state registration requirements. He argues that Congress gave the attorney general too much discretion in deciding whether and which sex offenders convicted before the law was passed are covered by it.

While that dispute may seem far afield from Trump's money grab, both situations raise the question of how far Congress can go in delegating legislative powers to the executive branch. And since the U.S. Court of Appeals for the 2nd Circuit ruled against Gundy, the fact that the Supreme Court agreed to hear his case suggests that at least four justices are open to reviving the nondelegation doctrine.

Even if that does not happen, Congress can and should prune the president's overgrown emergency powers and impose meaningful limits on the circumstances in which they can be exercised. Good fences do no harm to good dogs, and they are especially important for wild ones.

© Copyright 2019 by Creators Syndicate Inc.

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  • Qsl||

    Problem is congress is loath to take much responsibility for anything anymore, except maybe dedicating National Ulcerative Colitis Day, and even that is more of a private function held behind closed doors. Nope, best pawn off anything divisive to the letter agencies and plausible deniability. Trump just had the nerve to announce it first (and loudly).

    Even with a SCOTUS ruling, I doubt much of anything will change. Congress could have walked this back many times, and I doubt the SCOTUS will do much more than acknowledge this and get back to watching Judge Judy.

  • Ken Shultz||

    When congress is unified and decisive, they sometimes do things like sign off on the Gulf of Tonkin Resolution, FDR's central planning, the open ended AUMF, or invade the South and burn it to the ground.

    "The only thing that saves us from the bureaucracy is inefficiency. An efficient bureaucracy is the greatest threat to liberty."

    ----Eugene McCarthy

    Maybe there's some kind of relationship like that between Congress and decisiveness. Maybe the only thing that saves us from Congress is its indecisiveness. A decisive Congress might be a major threat to liberty.

  • Qsl||

    My suspicion is that that congress is more or less united on most things, but maintains controlled opposition for the donor roles and drama.

    Normal distribution would suggest an outlier event for congress that goes south at least as often as the executive washroom runs out of toilet paper, and yet bureaucracy never seems to be an impediment to bureaucrats. Even being shut down for nearly a month had little more affect than canceled travel plans and underlings unable to make rent as a media spectacle. I'm more than certain all the madams that service congressional staff still got paid.

    Bureaucracy does make for a ready-made excuse as to why bureaucrats are simply helpless to much of anything but guffaw at it all. These are the same people who have systematically solidified the power. They are far from incompetent.

  • OldGuy||

    Perhaps in the not too distant future we'll need something Frank Herbert's BuSab.

    https://en.wikipedia.org/wiki/Bureau_of_Sabotage

  • TxJack 112||

    The problem is Congress no longer cares about actually governing for the good of the country. They govern to aid those who give them money to get re-elected and line their pockets. Ask yourself this one question. How are so many members of Congress millionaires? The highest paid is speaker of the House ar $223,500. Example, Carolyn Maloney from NY was a teacher, adminstrator and then served as asst in state legislature before being elected to Congress. She is now worth over $10.4 million. How?

  • BambiB||

    the power to freeze bank accounts, to take control of the internet, and to "suspend a law that prohibits the testing of chemical and biological weapons on unwitting human subjects."

    Ah-HA! The solution! Freeze the bank accounts of all Demoncraps, and test nerve gas agents on Pelosi and Schumer!

  • Ken Shultz||

    I remember, back during the Clinton administration, people used to ask whether Clinton's fund raising activities were ethical. The administration's response was almost invariably, "What we did was legal", which really wasn't the answer to the question.

    I remember back during the Bush Jr. administration, I used to ask whether things like torture, warrantless wiretapping, TARP, etc. were ethical and really in our best interests. Their responses to such questions were almost invariably about the legality of such things, which wasn't really the answer to those questions.

    Now, I'm watching Trump and his supporters telling us that what he's doing is legal, but that isn't really the question I'm asking. I want to know if running an end around the proper purview of democracy is appropriate and really in our best interests--regardless of whether it's legal.

    There must be a million things that a president can do like that. Just because what the president is doing is legal doesn't mean it isn't also inappropriate, unethical, and not in our best interests. I'm more persuaded by arguments that things that are illegal should be made legal because doing so is ethical and in our best interests (say, getting rid of the drug war), more than I'm persuaded by the suggestion that doing something is ethical and in our best interests simply because it's legal. Anybody who's trying to convince me that what Trump is doing is legal is barking up the wrong tree.

  • Brett Bellmore||

    Not going to defend it as ethical or constitutional. My position is that Trump is President, and as such entitled to exercise every last power, ethical or unethical, and if you don't like that, change the freaking law.

    No more TrumpLaw. Fix the problem, and Trump isn't the problem. Excessive executive power is. Just reining in Trump only takes away the pressure to fix the real problem, guaranteeing it won't be fixed.

  • loveconstitution1789||

    +1000

  • chemjeff radical individualist||

    "It's only bad when they do it"

  • vek||

    I think there is A LOT to the argument that you should strictly enforce bad laws, because it will piss people off, and force the laws to be changed.

    If you have 0% enforcement of bad laws, nobody minds, and they lay in wait until somebody comes along and REALLY puts them to full effect. Presidents probably shouldn't be able to do half the crap they can... But since they can, why not get shit done with it? The other side will. Obama abusing his power sure as hell pissed off non lefties, and now Trump is doing the same. GOD FORBID people may come to the conclusion the Imperial Presidency should be toned down a bit.

  • Azathoth!!||

    And again you state the position of you and your cohorts succinctly--

    "It's only bad when they do it"

    Every crime you accuse them of, every slight, every unforgivable action becomes a laudable goal when it is done in service of the statism you so love, when it is accomplished to keep the boot upon our necks.

  • Teddy Pump||

    That is what there are courts, so these executive actions can be challenged....I hated Obummy & his policies, but, I cannot fault him for trying to implement them via ex. order & unconstitutional power grabs & verily, the courts slapped him down quite a lot, just like they have with Trump!

  • JWatts||

    "The administration's response was almost invariably, "What we did was legal","

    You've forgotten Al Gore's famous response.:

    "There is no controlling legal authority that says this was in violation of law."
    -- Al Gore, seven times (in one form or another), White House news conference, March 3

    "Gore is talking here about his phone calls from the White House soliciting Democratic campaign contributions. Now, he cannot say, "I have broken no law," because Section 607 of Title 18 of the U.S. Criminal Code states very clearly there is to be no solicitation of campaign funds in federal government offices. Gore broke the law as written, as understood and as practiced. "

    https://goo.gl/eFBnNd

  • Ken Shultz||

    Again, he was arguing about the legality of what he did, but that wasn't really the question. The question, for me, anyway, wasn't about whether what the Clinton administration was doing was legal. The question was whether what they were doing was ethical, appropriate, and in our best interests.

  • Dace Highlander||

    I've argued over the years that various law making bodies (you didn't think Congress had the monopoly did you) have codified unethical, immoral, inappropriate and/or outcomes against our best interest into law. It's almost as if someone were looking for short term personal gain were put in charge of writing the rules.

  • mlwjr||

    Yes, it is an ethical response to a congress that consistently thwarts the laws on the books for immigration yet will not make any attempt to change them. Unfortunately "ethical" is not always black and white and can be opinion based.

  • Ken Shultz||

    Because honest people can disagree about things like ethics and best interests doesn't mean that those honest arguments shouldn't frame the debate.

    I oppose socialism because it's unethical and not in our best interests. Anyone who wants me or people I can influence to support socialism need to make arguments for their cause on that basis.

    If all they have is evasions about how socialism (or anything else) is legal, then I'm gonna eat their lunch. They aren't even trying?

  • vek||

    I don't see where it's unethical personally.

    The President HAS ALWAYS had wide ranging powers, as intended by the founders, and frankly as needed IRL. We found during the Revolution that without a strong executive, shit didn't get done. We damn near lost the war because of congressional dysfunction on a lot of major issues. So we had a reasonably powerful executive day one of the constitution.

    Now, we have added/changed things a lot since then. One can argue a statue passed by congress isn't the right way to amend presidential powers, perhaps it should have been a constitutional amendment maybe... But we do have a statute, and it's not like something like this is INFINITELY more powerful than other powers granted to the president, such as supreme command of the military.

    So I don't see where it is unethical per se. Since I am also in favor of the wall, I don't have a practical problem with it either.

  • Lester224||

    Too much executive power is too much executive power. I don't have a lot of confidence that those who support taking the wall money away from other congress-approved project will have the same attitude with a "socialist" in power after Trump loses the next election.

  • loveconstitution1789||

    Apples and oranges, Lester... Apples and oranges.

  • Teddy Pump||

    That is why there are courts & they will decide this!

  • vek||

    I'm fine with reigning in the executive branch... But the truth is, while the power is there and legal, why wouldn't one want to use it to further their ends?

    The left sure doesn't have a problem with this. ALL power can be used for good or evil. You can argue against executive power as a thing unto itself, or not. You can also argue about particular uses of power you don't agree with. They're different things.

  • loveconstitution1789||

    Ethical is an ill-defined word for government but I think I get what you are asking.

    Should President Trump use DoD funds to build a wall when only $1.7 billion was appropriated specifically for that purpose? Yes.

    Democrats in Congress do not want Trump to successfully fulfill his campaign promise and they do not want the flow of potential new Democrat voters interrupted.

    Trump and his supporters want a more secure border and for the open border people to effectively admit that they lost the fight that America has open borders. This would result in America having a policy that does not reward illegal immigration as it did in the past.

    Since there is a clear difference of opinion on this issue, you have 3 equal Branches of Government. The SCOTUS has mostly sided with Trump enforcing immigration law. Congress has appropriated $1.7 billion for a border fence and appropriated untold billions for DoD national defense giving that detailed spending discretion to the Executive. Branch. Trump's Executive Branch wants to spend the $1.7 billion and other DoD money to more secure the Mexico border more.

    Since most of the government spending involves items that are not even remotely close to being constitution, the Democrats complaint against border spending is a joke since national defense IS listed multiple times in the Constitution. So, yes, trump should spend DoD money that Congress appropriated for the President's discretion to expand the border fence.

  • Ken Shultz||

    "Just because what the president is doing is legal doesn't mean it isn't also inappropriate, unethical, and not in our best interests."

    To be clear, the question isn't whether securing the border is appropriate, ethical, and in our interests. I want both a secure border and wide open, legal immigration, and I think they're both appropriate, ethical in our interests.

    I do not want government bureaucrats inflicting open borders on the American people over their objections and against their will--because ignoring Congress' enumerated powers is not appropriate, ethical, or in our interests regardless of whether I want open and legal immigration.

    Likewise, I do not want Trump inflicting border security on the American people over their objections and against their will--because ignoring Congress' enumerated powers is not appropriate, ethical, or in our interests despite the fact that I want a secure border.

    The question isn't whether a secure border is appropriate, ethical, or in our interests; the question is whether doing an end around Congress' enumerated powers is appropriate, ethical, or in our interests.

  • Ken Shultz||

    People like Shika Dalmia don't want to let Congress' enumerated powers get in the way of open immigration, but I object to ignoring Congress' enumerated powers solely on the basis that Congress' enumerated power to set the rules of naturalization is well within the proper purview of democracy.

    If Congress' power to set the rules of naturalization, fund such things, finance our defense, etc. is all well within the appropriate purview of democracy, then I don't feel any differently about Trump usurping Congress' proper powers than I do about people like Shika Dalmia doing the same--and for all the same reasons.

  • loveconstitution1789||

    Ultimately Ken, its up to the Legislative Branch and the Executive Branch to figure out how to pay for and implement policy.

    Democrats in Congress dont like what Trump is doing but they dont control Congress.

    Therefore, Congress appropriated the DoD and drug war monies without specifying the money cannot be used on a border fence.

    Trump, as the head of the Executive Branch has the power to implement policy as he sees fit and within the Constitutional framework.

    Many Lefties just hate that Trump outsmarted them. Trump really needed at least $1 in border wall appropriations, to give his wall plan Congressional approval, and he got it.

  • vek||

    The truth is, Trump IS implementing the SPIRIT of all the laws congress has passed in the past. There is no consensus on how to change them, so IMO that means the previous laws passed still hold the "moral high ground" since they're on the books, until the popular will is truly shown to be otherwise. And to a large degree a majority of Americans have problems with how illegal immigration is handled.

    The wall as a particular way to deal with it ebbs and flows in popularity... But one has to wonder how much more popular it would be if 90%+ of the media wasn't shilling for the leftists?

    So IMO the president is fulfilling the intended spirit of laws duly passed, and implementing it in the way he feels will be most effective. There is no new consensus to replace it as yet, so the status quo that is already in law stands until something new is passed.

  • loveconstitution1789||

    "The question isn't whether a secure border is appropriate, ethical, or in our interests; the question is whether doing an end around Congress' enumerated powers is appropriate, ethical, or in our interests."

    Trump is not doing an end run around Congress' enumerated power.

    Congress' enumerated powers relevant to border security are: Controls the purse, can regulate immigration and naturalization, can regulate the military, and many other powers that tie into the Common Defense.

    Congress does not do line item appropriation for most budgets anymore. Congress did specify requirements for the $1.7 billion. The DoD funds and drug war funds Trump has mentioned he will use, are funds that are not general monies but tied to general categories of Common Defense.

    Trump wants to use those funds, appropriated for Executive Branch discretion, based on the head of the Executive Branch's discretion.

    Furthermore, Congress can cancel any appropriation of money and redo it to be more general or more specific as they like. The power of the purse is Congress' and the only real restriction is that all funding bills must originate in the House.

  • Ron||

    The question isn't whether a secure border is appropriate, ethical, or in our interests; the question is whether doing an end around Congress' enumerated powers is appropriate, ethical, or in our interests."

    I say an end run around congress is ethical when congress refuses to do what it has done in the pass but won't now only because of TDS politics. At the same time i don't like the idea of making the issue a national emergency as others have said the president could have ordered DOJ to put its money on the border at any time just like a president can direct all funding he is in charge of. but if he had done that no one would have noted and he wouldn't get the credit and the political theater we have today

  • Azathoth!!||


    The question isn't whether a secure border is appropriate, ethical, or in our interests; the question is whether doing an end around Congress' enumerated powers is appropriate, ethical, or in our interests.

    In this case, yes.

    Why? Because it is CONGRESS that is, and has been, acting unethically.

    Various members of congress have been getting elected, for years, on promises of border security they had no intention of living up to. There are numerous instances of video of them speaking out on this as well as several instances of them actually voting for it--with them acting to thwart these when anyone tries to enforce them.

    And we will never get the immigration reform we need until the flow of illegals over our long open borders is cut to a trickle.

    So, it is ethical AND in our interests for Trump to do this.

  • Robert||

    Trouble is, I can't convince myself that many who voted for either Trump or someone else wanted anything to be done ethically. I have trouble convincing myself many even wanted much of it done legally!

  • vek||

    What does "ethically" mean?

    It's such a nebulous term when applied to real world situations a lot of the time. NAP arguments can be made that NO restrictions are ethical for any immigrant from anywhere in the world at any time... But I can counter argue property rights violations. I can also make a practical counter argument that net negative tax payer illegal immigrants place an undue burden on me, the net positive tax payer, because of our welfare state and socialized costs for many items.

    On and on. Personally, I have a scale. It is unethical to call somebody a fat jerk. It is also unethical to shoot somebody in the face with a 12 gauge shotgun, then enslave their wife and children, using their daughter as a sex slave.

    Calling somebody a fat jerk is CLEARLY way less bad though. Then you have practical good. Getting paid $1,000 to call somebody a fat jerk is cool in my book. The practical good for you is a lot, and the immorality is small. Getting paid $1 Million to kill the dude etc however would still be immoral, and not acceptable.

    Getting paid $1 million to call the guy a fat jerk would be EVEN more okay. Controlling immigration is like calling somebody a fat jerk, it's perhaps moderately immoral, BUT the gains are great in practical terms. So I'm fine with it.

  • Ordinary Person||

    I love how "Congress" is given individual autonomy in these stories people tell. Congress did this or that. Congress gave up the power. Congress isn't a person. The acts of a past Congress are not attributable to the present Congress just as the actions of any Congress aren't neccessarily attributable to the individual members. Now the presidency is a different story. When you tell those stories you can blame individuals. That aside. I also completely disagree with the idea that the judicial branch cannot decide the meaning of "emergency" in the relevant statute. This idea that a court would close its eyes and ears and just accept whatever the President is an emergency is insanity. Where in the law can I find this principle of ignorance and delusion? Of course it's the court job to decide the meaning of the statutory language. What is or is not an emergency should be given understanding and that understanding should have more or less relation to reality. I get giving a president's determination certain consideration but there has to some limit on that or we're all finish. Any emergency is anything a President says it is facts be damned.

  • Ordinary Person||

    Now, using the drug interdiction money to build the fencing Congress has already authorized seems legit unless there's some issue I don't see.

  • Ordinary Person||

    Then again just Congress has to authorize 'fence and road" building on international borders and appropriate money accompanying the authority. The executive needs the go ahead and the money to act. Did Congress appropriate funds for this fence building? How much?

  • loveconstitution1789||

    Congress rarely line item appropriates monies anymore.

    The Constitution does not require them to either.

  • Valkanis||

    The thing is, it clearly does. If your name is loveconstitution1789, you should be more familiar with the text of the Constitution.

  • loveconstitution1789||

    Your citation fell off troll.

  • Dace Highlander||

    Damn no edit fuction.

    To Ordinary Person: I'll agree with you the moment the courts can define pornography.

  • Ordinary Person||

    You can at least start with the definition understanding of emergency then consider the intent to the law which was to provide canned ready made authorization to meet unforeseen disasters like an act of war by an enemy or an act of god. Or don't give the word meaning and limits and let the Presidents do whatever they want. That'll work out nicely for the progressives.

  • Ken Shultz||

    "The acts of a past Congress are not attributable to the present Congress just as the actions of any Congress aren't neccessarily attributable to the individual members."

    You're going too far with this. The fact is that the present Congress (and all congresses since the policy was set) could have changed the rules back to what they were but didn't. That is effective endorsement of the policy as it stands.

    The left loves to blame decisions the Reagan administration made for the problem of homelessness. For the sake of argument, assume those criticism of Reagan's policy are true. Reagan has been out of office for 30 years. There have been Democrat presidents for 16 of those years--and none of them bothered to change those policies back to what they were? At some point, the policy stops being Reagan's fault and becomes endorsed by those who could have changed the policy back and chose not to do so.

    There have been numerous Labour governments in the UK since Thatcher effectively privatized the coal industry and stopped subsidizing it more than 30 years ago. She still gets so much blame for that, but why? Subsequent Labour governments could have nationalized the coal industry again, but they didn't. To some extent, they have validated Thatcher's policy through their inaction.

  • Ordinary Person||

    Thankfully it won't take an act of Congress or a zombie dragon to undo Trump's part in this. The next President can "tear down this wall, I mean fence" and give the landowners their land back in a big ceremony.

  • loveconstitution1789||

    Sorry to disappoint you Person, but Democrats are not going to be in charge of government again.

    The Party of slavery is dying.

  • OldGuy||

    ^^^ this

  • loveconstitution1789||

    Socialists cannot blame their own policies, which clearly are never sustainable.

    So... they blame non-Lefty policies and the propaganda machines spew lies to skew the truth into a Socialist narrative.

  • TxJack 112||

    Some clown tried to blame the current problem with homelessness in California on Reagan's tenure as Governor a couple days ago. Progressives will claim anything no matter how ridiculous if it supports their narrative.

  • Ken Shultz||

    How long has it been since Reagan was Governor, 40 years?

    And the Democrats have owned Sacramento now for how long?

    Even if what they were saying about Reagan were true, . . !

  • loveconstitution1789||

    I would not even give Lefties the opportunity... "even if what they say were true"

    Lefties rarely tell the truth, so default to the position that they are liars and have them prove otherwise.

  • Ron||

    funny you should mention Reagan and homelessness, last night Tucker Carlson had a lib from California on and he was blaming Reagan's action when he was governer of California over 50 years ago for the homeless problems. they just won't let it go and admit that it was their idea and their ideas since that have failed the people not Reagan

  • loveconstitution1789||

    California is nothing like when Reagan was Governor. Nothing.

    More people should just call out these moron making claims like that and laugh at them.

  • Dace Highlander||

    I'll agree with you the moment the courts can define pornography.

  • Dillinger||

    >>>When you tell those stories you can blame individuals

    maybe 11 people in Congress matter. maybe. the rest are NPC

  • Moderation4ever||

    In the context of the budget this not much money and it is unlikely to get spent in the remaining fiscal year. I would suggest using little or no effort to fight it. Instead use that energy to fix the National Emergency Act to prevent this kind of use in the future. I would hope that Congress could find a way to do this, at the very least.

  • Ron||

    they could fix the national emergency act but they won't since they would like to use it for the pet projects as well and that is the problem with the act and why i didn't want Trump to use it just like when Reed used the nuclear option it ended up being used by both sides

  • Dace Highlander||

    In this case, Trump is relying on 10 USC 2808, which authorizes the secretary of defense, in the event of a national emergency "that requires use of the armed forces," to "undertake military construction projects" that are "not otherwise authorized by law" when they "are necessary to support such use of the armed forces."

    So let's see:
    Does this require the use of armed forces? Yes it does.
    Will the military construction project (i.e.The Wall) support such use of the Armed Forces? Yes.
    Is the military construction project not otherwise authorized by law? No it is not.

    Am I missing something here? Because it looks like Trump, even with the foreshadowing that he would declare the emergency, outsmarted the Dems and is punking them in their living room.

  • Longtobefree||

    Don't muddle the story with facts and legal opinions.
    Trump is evil, and anything he does is also evil by implication.
    How else can Hawaii have standing to enter a lawsuit about a wall a million miles away?

  • loveconstitution1789||

    They cannot admit that Trump outsmarted them...again.

    Democrats depends on federal bureaucrats working, so the shutdown for 35 days showed how far Trump would go.
    Democrats underestimated Trump on not signing a budget since he had signed two previous budgets.
    Democrats thought they could control Trump by throwing $1.7 billion at him.

    Trump now is credited with the longest federal shutdown in USA history (+100000)
    Trump got his wall money and acknowledgement from Congress that building a more secure border is worth appropriating money.
    Trump will now get credit for significantly minimizing illegal immigration into the USA and for deporting as many illegals as he can.

  • Mcgoo95||

    "They cannot admit that Trump outsmarted them...again."

    Once again you claim victory at half-time. You might want to wait until the Supreme Court rules before you start waving your boner around.

  • loveconstitution1789||

    Poor McGoop and his tears.

  • Mcgoo95||

    Weaksauce.

  • loveconstitution1789||

    Your tears are weaksauce?

  • vek||

    Uhhh, you DO know the mix on the supreme court right??? Also, can't wait for RBG to kick the bucket. THAT will be the biggest batch of liberal tears since the election methinks.

  • Mcgoo95||

    Uhhh.....yea I do. I also have to believe that they have brains and realize that granting the executive branch, essentially, tyranny via emergency action is the road to ruin for our society. You might be right, but it would surprise me. But feel free to make any foolish assumptions you want......seems to be how you operate anyway.

  • vek||

    Uhhh, that ship said decades ago dude. Right or wrong the executive has ALWAYS had massive amounts of power, and it has only expanded in recent decades. If they shoot it down it WILL NOT be on principle, but because they don't like this particular usage.

  • chemjeff radical individualist||

    Does this require the use of armed forces? Yes it does.

    Since when does building a stupid wall require the marines?

  • loveconstitution1789||

    Poor Chemjeff does not even know about the SeaBees and their wall making abilities.

  • TxJack 112||

    They are called combat engineers.. Same people who build fortifications, runways and other infrastructure in the field and maintain them on military installations. They are not combat troops. P

  • chemjeff radical individualist||

    Building a wall doesn't require the marines, or combat engineers, or anyone in the military whatsoever.

    All of the existing wall that is there now didn't *require* the use of the military at all.

    So justifying a "national emergency" on the condition that "building a wall requires the use of the armed forces" is a flat-out lie.

  • vek||

    I dunno, it can be easily argued that the caravans, and all the smaller groups crossing the border require military patrols, since the border patrol doesn't have enough people...

    If all we're having to do is come up with bullshit justifications and all. I mean that seems to be good enough for most prog positions, even though they usually make even less logical sense than that... So I'm not seeing a problem here.

    If we're lucky they might even get an excuse to mow down some coyotes or cartel dicks that fire at them! THAT would end up deterring the FUCK out of people crossing the border.

  • chemjeff radical individualist||

    Got it! Use 'motivated reasoning' to arrive at the desired conclusion, even though you admit that the other tribe does the exact same thing (and you criticize them for it), because it's only bad when they do it.

  • vek||

    Do you not pay attention to what I say?

    I gave up on trying to be principled awhile back. It's a fools errand. When you're playing with an opponent that is willing to cheat, you have to be willing to break the rules too.

    Libertarians and right wingers have clung to the idea of fair play for decades... And it has cost us America. Because the left doesn't care about playing fair. If we continue playing that game, we'll continue to lose. Therefore, I say start playing dirty. If we manage to pull this country out of it's descent into hell, we can restore rules and fair play... Until then we'd be idiots to try to continue a failed strategy.

  • Rat on a train||

    Army Corps of Engineers

  • chemjeff radical individualist||

    Last I checked, building a wall doesn't require the Army Corps of Engineers.

  • Rat on a train||

    The Army Corps of Engineers has a broad civil works mission. They are involved in major federal building projects.

  • Ron||

    most delta dikes and bays are maintained by the Army Corps but they often hire private contractors

  • vek||

    There is a major set of locks built and maintained by the Army Corps of Engineers a couple miles from my house... I'm sure a military boat or two goes through it now and again, but it's 99.9% civilian use...

  • Robert||

    But its requiring the use of the armed forces seems circular. If you've already decided to use the armed forces to do this construction project, then, duh, the armed forces are "required". But even if the construction project itself can be said to be required in the sense of "necessary", since there are other ways it could be done, it doesn't look like the armed forces are required at all. It's like taking a hostage & then saying the fact that a hostage has been taken requires everyone to accede to the hostage-taker's demands. Or like newspeople defaming someone publicly, then claiming "public figure" status for that person thereby.

  • chemjeff radical individualist||

    Yup you got it. It is circular logic.

    "The President deems the military is necessary to 'secure the border'!"

    "Well of course the military is necessary to secure the border! The President said so!"

  • vek||

    By that line of thinking:

    We need to invade this country!

    But technically we don't NEED to use the US Army... We COULD hire nothing but contractors to do the fighting. So TECHNICALLY this statue for building walls and defenses doesn't apply!

    That's basically your argument applied to a different situation. There are lots of times when the military could theoretically be substituted for some other entity. What about major disaster relief? Etc.

  • Valkanis||

    No, building the wall does not require the use of armed forces. Border security is a civilian function in the United States. Your fail argument fails.

  • loveconstitution1789||

    Poor troll's citations keep falling off.

  • JWatts||

    "Trump's Phony Yet Legal Border Emergency"

    Thanks for admitting that Jacob. There have been too many writers that have posted what they want the law to be instead of what it is.

    Also, as to the claims that the President can't declare it an Emergency because it's not urgent, well we've got an active National Emergency declaration from the Carter administration. That's 40 years ago.

    I also agree that Trump shouldn't have taken this approach, that it sets an awful precedent. But not liking something doesn't give people an excuse to lie about the laws.

  • John||

    It doesn't set a bad precedent. It is only a bad precedent if you think securing the border has nothing to do with national defense.

  • JWatts||

    The precedent will broadly interpreted. As in, I can use a National Emergency to spend money that Congress refused to allocate the way I want.

  • JWatts||

    The precedent will be broadly interpreted.

  • loveconstitution1789||

    Lefties always broadly interpret law.

    Lefties wrongly interpret the Constitution.

    Lefties don't give two-shits about the Constitution unless it can be used to stop Socialist rollbacks.

  • Valkanis||

    We aren't in 5th grade, what lefties do does not in any way make it right for Republicans to violate the constitution. It is an objective fact that securing the border has nothing to do with national defense. National defense by definition is not concerned with criminal actions but actual military action. There is no mass illegal immigrant crime-wave that could possibly fit that description. Once again, that is an objective fact, despite Trump's hilariously false lies that he doesn't even try to justify with a single shred of evidence, whatsoever.

  • vek||

    Yup. That's the thing, the Dems would have used this same trick if it seemed worth the political cost to do whatever they wanted, whether Trump used it or not.

  • awildseaking||

    Love how the irony is completely lost on Reason using two analogies about physical barriers while subsequently calling Trump's insistence for additional barriers a phony emergency.

  • ||

    All over, what, a stupid 200 mile wall? The Dems should have just let this go given there's nothing immoral about it. Effectiveness is another matter, but walls in varying degrees have been built throughout history as a means of defence. They do work if anything to impede or discourage.

    I just think all this could have easily been avoided. ESPECIALLY, given Trump's position matches the rhetoric on border security over the last 25 years.

  • Tu­lpa||

    Come on Rufus. You know as well as anyone that the Dems care only about winning this. And winning this means no wall. They couldn't care less about the people involved, or looking like hypocrites, they just need to avoid letting Trump win anything.

  • SQRLSY One||

    Tulpa knows how to "win" by calling everyone a stoooopid-head all day! It is the way to win arguments (in Tulpa's mind at least). I wonder if Tulpa is actually Donald Trump, when The Donald gets totally bored with calling enemy politicians stupid-heads all day long? Trump = Tulpa!

  • chemjeff radical individualist||

    Come on Rufus. You know as well as anyone that Trump cares only about winning this. And winning this means a wall by any means necessary. They couldn't care less about the people involved, or looking like hypocrites, they just need to win.

  • vek||

    That's true!

    But it's ALSO true for the Dems... If you can't see that you're blind.

    The thing is they both ARE legitimately on other sides of the actual issue at hand. The Dems want to encourage illegal immigration, so are against anything that impedes it. Trump wants to slow it down as much as possible. But IMO I don't think either one REALLY cares THAT MUCH about a wall in particular.

    BUT they both do care THAT MUCH about being perceived as WINNING.

  • ||

    It's politics for sure but it seems the American public backs Trump.

    Build the stupid wall.

  • SQRLSY One||

    http://www.huffingtonpost.com/.....88b70798d1

    Trump Says Country Wants Border Wall, But That's Not What Polls Say

    http://fortune.com/2018/12/12/.....wall-poll/

    69% of Americans Don't Think Trump's Border Wall Is a Priority, Poll Says

    There's more of the same out there. Trumpistas support Trump and his wall; the majority do not.

  • vek||

    But most Americans DO want to fix the illegal immigration problem.

    So it's a bit like polls showing that people want crime to go down in their city... But they don't like the idea of bike cops or whatever, because they've been told bike cops aren't effective, so they have other nebulous ideas about how to do it.

    People don't think the wall will work, largely because of the MSM shit storm against it, but they DO want to achieve the ends the wall will help with. To me 1/3 +/- on board with the wall in particular, and a strong majority in favor of achieving the goals intended with the wall is good enough to me.

  • Dillinger||

    >>>The nondelegation doctrine, a long moribund principle that prohibits one branch of government from passing off its responsibilities to another, suggests Congress cannot.

    bunch of fucking babies getting beat at their own game every day. love it.

  • John||

    The Democrats want Trump to build his wall so they don't get blamed for stopping it but can still tell their base they tried to stop him but couldn't. Everyone wins here.

  • Dillinger||

    not the Ecuadorians but what can I do about that?

  • JWatts||

    The Ecuadorians reduce the hemorrhaging of ambitious citizens to the US.

  • Dillinger||

    i hear their B are lovely

  • Dillinger||

    B ... lost luster w/the typo

  • Dillinger||

    B ... and ... Bs why the fuck won't it accept "B & B"?

  • vek||

    Who cares about Ecuadorians? Apparently not even Ecuadorians care about Ecuadorians, or else they'd get their shit straight and make their country better. Instead they just want to bail out to somewhere where they think they'll make more money, and not give any fucks about their homeland.

  • Dillinger||

    exactly.

  • Valkanis||

    Lots of babies around apparently.

  • Dan S.||

    Wouldn't the Posse Commitatus Act mean that the entry of unarmed migrants into the country could not be considered something "that requires use of the armed forces"?

  • loveconstitution1789||

    Posse Comitatus Act

    is to limit the powers of the federal government in using federal military personnel to enforce domestic policies within the United States.

    In other words, using the US Army for police duties. The US Navy (USMC) and National Guard are not mentioned in the Act.

    The Act was modified in 2006 to not mean what it used to.

  • loveconstitution1789||

    In 2006, Congress modified the Insurrection Act as part of the 2007 Def Authorization Bill (repealed as of 2008). On 9-26-2006, George W. Bush urged Congress to consider revising federal laws so that U.S. armed forces could restore public order and enforce laws in the aftermath of a natural disaster, terrorist attack or incident, or other condition. These changes were included in the John Warner National Def Authorization Act for Fiscal Year 2007 (H.R. 5122), which was signed into law on October 17, 2006.

    Section 1076 is titled "Use of the Armed Forces in major public emergencies." It provided that:

    The President may employ the armed forces ... to ... restore public order and enforce the laws of the US when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition ... the President determines that ... domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order ... or [to] suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such ... a condition ... so hinders the execution of the laws ... that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law ... or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws

  • creech||

    "those who could have changed the policy back and chose not to do so."
    So true. Like the Dems who complain about "Bush's recession" but they were in charge of Congress and did nothing to try to prevent it. And, today, Trump wasting two years control of both houses of Congress to revise the immigration laws. Now, the GOP gets its ass kicked in the midterms and it appears too late to do anything about it with declaring an emergency. One also wonders where the pro-wall folks are. The local tea party is now invisible while the anti-wall folks are demonstrating at the courthouse and in front of the congresscritter's office.

  • vek||

    Right wingers rarely ever have demonstrations. The Tea Party was probably the biggest exception to that rule in history.

    It's because right wingers have jobs and other shit to do... They're not a bunch of useless hippies or losers living in moms basement, so they don't have time to go whine like girls in front of government buildings. Although they sure as hell need to start doing it more with the way things are going in this country.

  • TxJack 112||

    Oh yes the "phony border emergency". Okay 16 states sued to stop the President and how many of those states were actually on the southern border? Two of them. The other 14 are all at least 300-400 miles away but most are 1000 miles or more from the border. It is very easy to claim the problem is "phony" when you live where the realities of what is happening on the border will never affect you. Is Hawaii really threatened by illegal immigration from Mexico and central America? What about MN,MI, ME,DE, CT, NJ, etc?? No they are not and never will be which is why it is so easy to play politics and "resist" the President.

  • vek||

    The thing is, the whole country HAS been changed by all the illegal immigration. Almost every Hispanic in the country is either an illegal immigrant, or the children/grandchildren of an illegal immigrant. The US was only ~2% Hispanic in the 60s, and now it's ~16%. And they're everywhere.

    Not that I'm saying that gives those states much legit reason to be OPPOSED to a wall, but it does give them a lot of reasons to be in favor of it.

  • Dillinger||

    >>>Almost every Hispanic in the country is either an illegal immigrant, or the children/grandchildren of an illegal immigrant.

    Hannity?

  • vek||

    No. Just math. We did not go from 2% to 16% with the small number of legal immigrants we have had via them kicking out THAT many babies. US born Hispanics, especially back a couple decades ago, had birthrates very close to regular whites.

    I'm part Mexican myself, and from California. I knew A LOT of people who were anchor babies born to previously illegal immigrants who were granted amnesty under Reagan. I knew VERY FEW that immigrated legally. If you want to get into the weeds, a TON of our legal immigrants from Latin America only got in because of our family reunification policy after one of their relatives got amnesty too.

    It just is what it is. At best I bet that ~2% source Hispanic population + legal immigrants is responsible for 5% of the US population. The rest is illegals or their immediate family is/was.

  • Heresy Hunter||

    Yeah, their lawsuits clearly include nothing about unconstitutional executive action. They are just attacking the idea of building a wall itself.

    This is definitely not a good argument to use, as illegal immigration is a big problem and has been for years.

    I really like the article's closing quip:

    "Good fences do no harm to good dogs, and they are especially important for wild ones."

    But wouldn't this also be applicable to the border wall, which would keep out the "wild dogs?"

    Wow, ironic.

  • Valkanis||

    "Yeah, their lawsuits clearly include nothing about unconstitutional executive action. They are just attacking the idea of building a wall itself."
    The problem is that is totally false, as the article makes clear.

  • Heresy Hunter||

    A lawsuit filed by California and 15 other states on Monday argues that there is "no objective basis for President Trump's Emergency Declaration" and that "by the President's own admission, an emergency declaration is not necessary."

    Despite their comments about the separation of powers tacked onto the lawsuit, the real reason is that they especially hate THIS national emergency. Of course that might have something to do with the President because California wasn't filing lawsuits against any of the many national emergencies declared by Obama.

    Not saying this national emergency isn't more questionable than most of Obama's, but we all know hate for the wall is the driving force behind this one.

  • Ron||

    Yes emergencies can be dealt with later, when it to late. gotta close the gate before the horse gets out

  • chemjeff radical individualist||

    So if illegal immigration is a "national emergency", and furthermore constitutes an "invasion" that requires the use of the Armed Forces, then what would your objection be, theoretically, to using the military to arrest illegal immigrants within the country? If they are "invaders" then why not send in the Marines to drag illegal Guatemalans out of their houses in downtown LA? What would be your objection to that (if any)?

  • vek||

    Fuck 'em?

    They're friggin' FOREIGN NATIONALS Jeff. They are not here legally.

    What would your opinion be on sending in SEAL Team 6 to arrest a bunch of known Islamic terrorists in downtown LA? Whether they're illegally here, OR came in on some sort of legal visa, I'd be down for some SEALs takin' them out.

    Thing is, it's a mostly BS hypothetical. While we may want/need to deploy them to the border, we don't likely need to use them on the interior. Those are indeed two totally different things. Nations have almost ALL historically put their armed forces on their border for border enforcement.

    Next stupid question.

  • Valkanis||

    A disturbing amount of comments to this article on a site called Reason, use as their argument "Democrats did it!"

  • chemjeff radical individualist||

    That is about half the commenters here nowadays. They aren't principled libertarians, they aren't really principled conservatives. They are just anti-left.

  • vek||

    I would be a lot more principled if the situation weren't so fucking dire.

    I really don't get how some of you people are REALLY concerned about the direction things are taking in this country the last couple decades. The Neocons were responsible for plenty of it mind you, but the Dems are responsible for even more awful shit, and seem to be the likely major problem going forward.

    Most of you guys are looking at things and seeing "Oh it's just politics as usual!" which I think is a completely incorrect assessment of the situation.

    IMO we're at one of those major inflection points where things are going to go hard to one direction or the other. I think the entire future of the USA hinges on the next 5-10 years. After that our course will be set.

    We'll either continue on as a country that roughly approximates what the US has always been, but probably slightly shittier and a slow slide, OR we're going to be heading into a hard and fast hardcore socialist future. What that seems to constitute now is massive economic control, no free speech, no gun rights, no tolerance of different opinions, etc.

    If it were boring monoparty politics of 1994 or something I'd be a lot more purist... But I think we need to be on war footing, which means you can and should play by a different set of rules.

  • Dillinger||

    >>>They are just anti-left.

    anti-both.

  • loveconstitution1789||

    Chemjeff the Lefty hates that Libertarians and Trump supporters dont support his nonsense.

  • JeffreyL||

    Yes, i would agree. However, just as disconcerting is the author of the article, and every other on this site lays the blame at the feet of Donald Trump. That is just as disingenuous. The article should all be about blaming congress. Congress passed this law. Congress can at its leisure vote to remove/overturn the law with disregard to Donald Trump. It requires only 291 house members and 67 senators. And voila. no more emergency declarations, by anyone other than congress.

  • loveconstitution1789||

    +10

  • Cthulunotmyfriend||

    Absolutely true, and I dislike Trump. Obama did big things too with executive orders with a "pen and a phone". However, I doubt congress will do anything.

  • AlmightyJB||

    Congress would rather defer all decision making to the executive. That way they can't be blamed for anything. Not that the media would hold them accountable anyways (see immigration law). This has been going on forever.

  • vek||

    Soooo it's not an "emergency" that more people have been killed by illegal immigrants than we have lost in entire fucking wars???

    That more are killed every year (IIRC) than we lost in 9/11 or at Pearl Harbor?

    The fact that previous admins did a shit job of dealing with a disaster doesn't mean something isn't important.

    I hope he builds the wall on the whole border. I also suspect illegal immigration will go down afterwards. Not STOP completely, but go down a good chunk. I will love to see the faces of all the tools who said walls don't work, when they clearly do all over the world and throughout all of history.

  • Heresy Hunter||

    I don't hope Trump builds the wall because the President does not have the power of the purse. It is not within his authority to build the wall.

    Congress on the other hand should build the wall, or at least do something about illegal immigration.

    Why does Trump feel responsible to do what Congress will not do? That's not the President's job.

  • loveconstitution1789||

    I would support your claim, if all the politicians in Congress got out and built the wall.

    Could you imagine Pelosi moving a wheel barrel?

  • M.L.||

    One reason Trump is a great President is that he MIGHT get Congress to reclaim its powers from that heinous unconstitutional behemoth, the administrative state.

  • skeptic||

    So the next time a Democrat is in power, they can install national health insurance because of the emergency of tens of thousands of people dying each year from lack of insurance. More die from lack of health insurance than are ever murdered by illegal aliens. Come to think of it, more people are killed by guns than by illegal aliens, so we apparently need a national emergency to seize those guns. What I really mean to say is that the President should not be allowed to bypass Congress by declaring an emergency.

  • Cthulunotmyfriend||

    Love the quote. "Good fences do no harm to good dogs, and they are especially important for wild ones."
    I hope the next Chief Executive has vastly reduced power, even if I am for them. Furthermore, the fact that the President is Commander and Chief is very OP. I agree that somebody has to be in charge. But we have let the Executive Branch become too powerful in the past 100 years.

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