MENU

Reason.com

Free Minds & Free Markets

This SCOTUS Precedent Is Bad News for Trump’s Emergency Border Wall Declaration

“Extraordinary conditions do not create or enlarge constitutional power.”

Library of CongressLibrary of CongressIt was a stark choice for the U.S. Supreme Court. On one side was the president of the United States, a grasping figure happy to bypass the usual checks and balances and enact his political agenda via executive order. On the other side was a foundational principle of constitutional governance; namely, that even in the face of a national emergency, the executive may not wield those powers that the Constitution has granted to the legislature.

I am referring, of course, to the landmark 1935 case of Schechter Poultry Corp. v. United States. At issue was whether Congress had illegally delegated lawmaking authority to President Franklin Roosevelt when it passed the National Industrial Recovery Act (NIRA) of 1933. That sweeping law represented the New Deal's most significant attempt to centrally plan the American economy during the Great Depression. One of the problems with the NIRA was that it authorized Roosevelt to take all sorts of unilateral executive actions, effectively making him a lawmaking power unto himself. (The Schechter case also asked whether the NIRA violated the Commerce Clause.)

Writing for a 9-0 Court, Chief Justice Charles Evans Hughes ruled the NIRA to be a flatly unconstitutional delegation of lawmaking power to the president. "The Congress," Hughes observed, "is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested."

Which brings us to President Donald Trump and his much-discussed emergency declaration to secure border wall funding. Just like Roosevelt, Trump is now seeking to wield powers that the Constitution has not granted to him.

If you ask Trump or his supporters, they will tell you that the declaration is perfectly lawful under a federal statute known as the National Emergencies Act of 1976, which authorizes the president to take various actions if he deems them to be necessary. Granted, that regrettable federal law is something of a blank check to the president.

But the National Emergencies Act cannot supplant the Constitution. And according to Article I, Section 8, the federal spending power rests in the hands of Congress. Yet here we have Trump trying to claim the federal spending power for himself. To make matters worse, Trump is only doing so after Congress explicitly refused to authorize the level of spending that he wanted. That's a clear attack by Trump on the separation of powers.

So forget the National Emergencies Act. As the Supreme Court made clear in its Schechter precedent way back in 1935, "extraordinary conditions do not create or enlarge constitutional power."

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Libertymike||

    It cannot be stressed enough that no statute can supplant the constitution and that if there is any doubt, the same should be resolved in favor of the constitution.

    Congress just was not empowered to outsource its authority to the President. What's more, a President who respected the constitution would not attempt to wield any power not specifically furnished to the POTUS by the constitution.

  • loveconstitution1789||

    Luckily, Congress appropriated money for the border fence and for national security which also involves protecting the border.

  • Juice||

    Then why did Trump declare a National Emergency?

  • chemjeff radical individualist||

    Because Co-Presidents Coulter and Hannity told him to.

  • buybuydandavis||

    racebaiterjeff talking out of his ass again

    Coulter has consistently said that Trump has all the constitutional authority he needs to build a wall without declaring a National Emergency.

    If Trump had listened to Coulter, construction would have started on Day 1 of Trump's presidency.

  • a ab abc abcd abcde abcdef ahf||

    Yes, you and John are adamant that your Principal Trump is allowed to divert appropriated funds however he likes. Somehow I do not think you liked Obama for doing the same.

    I'd like to see some cite for your definition of appropriation which is just "open your wallet" and has nothing to say about what it was originally appropriated for. But we all know how you handle cites.

    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?

    Please do, Mr Absolutist, please do for anything you claim. It will eb a good habit to start.

  • Agammamon||

    That's not a very good bit of misdirection.

    Whatever monies Congress did or did not appropriate - that's not got anything to do with the President declaring this SOE.

  • loveconstitution1789||

    Another court case the SCOTUS will side with Trump on.

  • DenverJ||

    Congress just was not empowered to outsource its authority to the President. What's more, a President who respected the constitution would not attempt to wield any power not specifically furnished to the POTUS by the constitution.

    I concur, but to my mind, congress reclaiming the power to declare war should be a higher priority than squabbling over whether 1% of the budget should be spent on a wall. But hey, I guess baby steps, right?

  • Frank Thorn||

    More like 0.2%.

  • Diane Reynolds (Paul.)||

    Congress just was not empowered to outsource its authority to the President. What's more, a President who respected the constitution would not attempt to wield any power not specifically furnished to the POTUS by the constitution.

    How do we explain regulatory alphabet agencies that effectively pass legislation whose penalties are considered offenses which can lead to imprisonment?

  • TLBD||

    Reason doesn't explain it because it is a conservative outlet interested in maintaining the status quo.

    Disruptors like trump are despised.

  • Francisco d'Anconia||

    How do we explain regulatory alphabet agencies that effectively pass legislation whose penalties are considered offenses which can lead to imprisonment?

    As an abomination?

  • Diane Reynolds (Paul.)||

    As would I.

  • loveconstitution1789||

    Once again, Reason staff cannot articulate exactly how Trump building a wall violates the Constitutional separation of powers.

    Congressmen constantly are hurting themselves building things deemed important for the Common Defense.

    As we all know, the Executive Branch has employees that build things or finds contractors to build things.

    Congress appropriated $1.7 billion to build a border security obstacles and Congress appropriated money for national defense budget.

    Trump is not spending any money that has not been appropriated for national defense and border security is national defense.

  • Juice||

    Then obviously there's no need to declare a National Emergency.

  • buybuydandavis||

    There's not.

    Trump had all the authority he needed on day one to build the wall and deport the invaders.

    Article IV, Section 4
    "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion"

    The Constitution obligates the federal government to prevent invasion.

    The Constitution obligates Trump to "take care that the laws be faithfully executed", including immigration laws.

    Trump has the *obligation* to defend our borders and deport illegals, not just the *right*.

  • loveconstitution1789||

    +100

  • Francisco d'Anconia||

    Trump has the *obligation* to defend our borders and deport illegals, not just the *right*.

    Only with monies for specific programs obligated by Congress.

  • Azathoth!!||

    Only with monies for specific programs obligated by Congress.

    Can you point to the place in the article that states this?

    Here's the section again, just to help....

    "Article IV, Section 4
    "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion"
  • loveconstitution1789||

    Congress does not do line item appropriations anymore.

    If they did, your point would limit Trump taking DoD money for say tank maintenance and use it to build more border fence.

  • a ab abc abcd abcde abcdef ahf||

    How does "appropriate" not include "for what"?

    Please show your work, for once.

    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?
  • Nardz||

    How do you not see that spamming this makes you look like an immature, obsessive psychotic?

    Get your shit together, dude

  • Zeb||

    Yes, there are better ways to make your point.

  • Tu­lpa||

    You're out-trolling even me.

  • a ab abc abcd abcde abcdef ahf||

    Eh. Have you noticed it shuts up lc1789? He doesn't even call me the alphabet troll.

  • Tu­lpa||

    No actually, I haven't noticed that. At all.

  • loveconstitution1789||

    Have you noticed that the alphabet troll always wants me to respond to his troll posts?

  • grb||

    Trump is misappropriating billions of dollars legislated by Congress for other purposes. The national defense budget is not Trump's private stash - the appropriations authority given Congress by the constitution still applies.

    Is it possible you don't know that?

    Also, Trump is misappropriating funds because Congress refused to approve his project. Their refusal came after a very extensive, explicit, and public debate - and followed an election where the project in question was a central issue.

    Also, this "emergency" exists only because Coulter and Limbaugh ragged on Trump for accepting the pre-shutdown budget accord. Trump panicked, reversed himself immediately, and then shutdown and emergency ensued.

    You, loveconstitution1789, want to crap all over the constitution because a buffoon is scared to take criticism from two hack radio clowns? Over a non-existent emergency and jokey political stunt?

    Oh, the irony of your name.....

  • lovestatism1789||

    You are obviously an Obama sympathizer, no doubt jealous that the Bozo-in-Chief is no longer using his pen and phone to order around the populace like the warden of a concentration camp. Fortunately for patriotic Americans, it is Trump who possesses the pen and phone now. Most libertarians would appreciate that the President is wielding this power for forces of good, to protect OUR RIGHTS from the invaders that threaten and plague the NATION. Stop falling for this fake news that Trump is overstepping his authority. If Crooked Hillary was running the show, the liberal media would be cheerleading every one of her executive orders.

  • Tu­lpa||

    Wait, he pissed you off so much you changed your name? Lol what a self own.

  • loveconstitution1789||

    Poor trolls hate me so much that they created a robespiere sock again.

  • grb||

    But this "emergency declaration" is just a gimmick for the dupes & chumps. Even you know that, right? Let's hear from Ann Coulter, the person who started this mess : "No, the goal of a national emergency is for Trump to scam the stupidest people in his base for 2 more years."

    First, the Congress will vote to revoke this phony emergency, both in the Senate and the House. Trump will veto, but the Congressional action will still speak loudly. Next, the appellate courts will enjoin this larcenous farce, freezing it until the Supreme Court rules against Trump by a sizable margin. I won't predict 9-0, but that wouldn't surprise me a bit.

    Remember : This is an obviously bogus "emergency", which Trump ignored for two years, then noticed only for pure political reasons, so then attacked the most fundamental congressional power under the constitution, because Congress refused to fund his useless branding exercise.

    How many Justices will vote for that ?!?

  • loveconstitution1789||

    At least 5 justices.

    Maybe 6 after Trump nominates a replacement for RBG.

  • grb||

    Well, one of us will be proven correct, that's fer sure....

  • loveconstitution1789||

    Hmm... the reason commenter who Mikey had on his hit list or grb the troll.

  • ConstitutionalDon||

    I think you place too much faith in Roberts.
    Of course, I am one of those who believes he adopted two kids illegally and whoever holds the documentation calls his shots.
    Crazy, I know, but it would explain some of his bewildering votes.

  • Libertymike||

    I highly recommend Brion McClanahan's book, Nine Presidents Who Screwed Up America and Four Who Tried to Save Her.

    The four not so bad presidents: Jefferson, Tyler, Cleveland, and Coolidge.

    McClanahan's yardstick? Those who endeavored to abide by his oath of office. According to McClanahan, it takes more courage and discipline and testicular fortitude to resist the tyrant's path trod by the likes of Lincoln and the Roosevelts.

  • grb||

    Hilarious. Got me to look, so kudos to you. A few questions :

    (1) Lincoln? Sic semper tyrannis, I'm sure. Just out of curiosity: You and Mr. McClanahan are aware of the fact he was dealing with an armed rebellion, right? Though the fact he DEALT with the armed rebellion was apparently the major issue per the book review I read.

    (2) Obama? Really? Really? I'm laughing too hard to comment.....

    (3) Jefferson? You might look into constitutional issues of the Louisiana Purchase (a bold and correct move), or maybe the enforcement extensions of the Embargo Act of 1807, which were imbecilic as well as unconstitutional.

    You (and Mr. McClanahan) will find issues there easily more substantive than the "tyranny" of Barack Obama.

  • Valkanis||

    You are actually going to pretend that Obama didn't lose a series of cases where he claimed essentially unlimited executive authority, 9-0, at the Supreme Court? Even the progressive justices were like "dude wtf are you thinking?"

  • grb||

    Every president has lost cases before the Supreme Court. Are you honestly claiming Obama's losses are somehow different? More important?

    Good luck selling that. For instance, Jefferson took his beating in Marbury v. Madison, didn't he? George W Bush got walloped in Boumediene v. Bush. Andrew Jackson took his lumps in Worcester v. Georgia (but ignored the ruling). Truman got smacked down in Youngstown v. Sawyer. Franklin D. Roosevelt was hammered by the Supremes, over and over. Martin Van Buren was rebuked by the court in the Amistad case, with the other side argued by John Quincy Adams. (There's a movie 'bout that) I won't even mention Nixon.

    All of these case - every single one - easily match any defeat Obama took. Somehow I'm guessing your case for the special "tyranny" of Barack Obama or the "uniqueness" of having a SCOUS ruling against him is based on factors other than the facts......

  • Tu­lpa||

    "Are you honestly claiming Obama's losses are somehow different? More important?"

    Yes that appears to be exactly what he is claiming

    "You are actually going to pretend that Obama didn't lose a series of cases where he claimed essentially unlimited executive authority, 9-0, at the Supreme Court? Even the progressive justices were like "dude wtf are you thinking?""

    And he makes a good case.

  • Tu­lpa||

    "All of these case - every single one - easily match any defeat Obama took"

    1) I don't agree

    2) you utterly missed the point about his total record

  • Edward Snizzerhands||

    "Boumediene v. Bush"

    Was 5-4.

  • Tu­lpa||

    And Youngstown was 6-3 and convoluted about what it actually decided. This guy is a fucking clown.

  • grb||

    Alright kiddies, gather around 'cause I'm going to administer a Clown Test. Sharpen your pencils and I wish you luck. We'll start with three SCOUS cases :

    Case One : A president attempts to use emergency powers to seize a substantial economic asset from its private owner and prevent its workforce from striking.

    Case Two : Do prisoners held in territory under US control have fundamental rights afforded by the Constitution such as habeas corpus?

    Case Three : If one person shows up every three days and yells "Congress is open" does that really constitute a Congress in secession?

    Test Time :

    1. Two of these cases are about major constitutional issues. Which one isn't?
    2 Two of these cases were major defeats to the sitting president. Which one wasn't?
    3. Two of these cases will be important 100 years from now. Which one won't be?
    4. Two of these cases have far-reaching relevance to broader issues. Which one doesn't?

    Really, people? You treat SCOUS cases like baseball scores - "Look, Truman scored three more points than Obama". Are you serious with that? Obama won the most important SCOUS of his presidency. Bush saw his entire strategy of dealing with war prisoners gutted in Rasul, Hamdan, and Boumediene. He tried to weasel around each ruling and got slapped down each time. Somehow your silly baseball scores aren't capturing the big picture

  • loveconstitution1789||

    Hypotheticals are so much fun!

  • E Blackadder||

    "Obama? Really? Really? I'm laughing too hard to comment....."

    Obama? The man who claimed that the Due Process Clause of the Fifth Amendment allowed him to summarily execute any American citizen he secretly decided, based on secret evidence, was an "imminent threat to America," even if the target was not imminently threatening to do anything?

    Yeah, I'm laughing too.

  • Agammamon||

    So his actions which caused that armed rebellion are justified by the armed rebellion?

  • grb||

    Wow. All we need is another fucking useless dead-ender re-litigation of the Civil War. I'm from the South and am used to it, so where do we start? Slavery wasn't the cause of Secession? The South didn't seize federal property by military force? The South didn't fire on Sumter while Buchannon was still president? Lincoln tricked Davis into reducing Sumter to rubble? Virginia would have happily stayed on the fence forever, but that brute Lincoln forced them into the Confederacy? Just by reacting to an armed attack?

    I've seen all that crap soooo many times, over and over.

    Dude, ya gotta work on your logic. Lincoln's "actions" caused an armed rebellion that began before he was even president to act? An armed rebellion that started while he was the model of circumspection, being criticized for refusing to comment with his predecessor still in office? I'm not getting that.....

  • grb||

    Additional facts :

    (1) By the time SCOUS hears the case, the "emergency" will likely have been rejected by a majority vote of both houses of Congress. You can never completely depend on GOP Senators when having a spine is requisite, but it's looking like Trump will lose the vote.

    (2) An emergency which Trump ignored for two years? He explains this by saying he was just getting a feel for the job. This problem was apparently resolved just hours after criticism by Ann Coulter and Rush Limbaugh made him reverse his position 180 degrees in a sweaty panic.

    (3) An emergency about cross border illegal immigration. Meanwhile, ICE apprehensions at the border are near a 46 year low.

    (4) An emergency? Trump says "I didn't need to do this. But I'd rather do it much faster."

    (5) An emergency merely because Congress refused to fund his political stunt

  • a ab abc abcd abcde abcdef ahf||

    Principal Trump over principles, my good man.

  • buybuydandavis||

    (2) An emergency which Trump ignored for two years?

    Decades shorter than the Swamp has fed the emergency.

  • Mike Hansberry||

    Art 4, sec 4: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion

    The above is a command, and not only to Congress. The president is acting on that command and the fact that Congress is disobeying the command does nothing to diminish it.

    As the OP said, acts of Congress do not supplant the Constitution.

  • grb||

    Be honest now and fess' up: When the caravan approached from the south - a disheveled, scraggly, ragged horde of men, women and children moving slowly on foot - you understandably retreated into your survivalist bunker with terror and apprehension. But then our brave and resolute Commander in Chief rushed crack infantry troops to the border to repel the invasion. Just in the nick of time !! With irrevocable disaster at hand !!!

    You can tell us; no one will sneer at your manly fear, trembling in your bunker, the Brown Menace nigh at hand

  • Tu­lpa||

    Hi Tony.

  • SQRLSY One||

    Hi Hihn!

  • Sevo||

    "When the caravan approached from the south - a disheveled, scraggly, ragged horde of men, women and children moving slowly on foot -"

    OK, I'm on the open-borders side of the argument, but this sort of outright bullshit needs to be called.
    Stuff it, liar.
    They rode in busses and trucks, there seemed to be porta-potties here and there, food magically appeared, etc.
    That was no Jose and his buddies deciding to hike north one day, that was an organized caravan, and I've yet to see any of the new media look into who did the organizing and the paying.
    Ignoring lying pieces of shit like you.

  • Longtobefree||

    Soros?

  • Zeb||

    Immigration and invasion are not the same thing. To conflate them is ridiculous. There's a reasonable debate to be had about immigration and how and to what extent it should be controlled. You can't just bypass it b y yelling "invasion!"

  • lovestatism1789||

    When the NATION is being invaded by vile socialists ready to take away OUR RIGHTS and leech public money away from patriotic departments like the Pentagon, Medicare, and the VA, rerouting it to the growing social distribution schemes like WIC, SNAP, TANF, UNICEF, and green energy programs. Beltway-tarians like Cuck Gillespie and Ron "the only thing a wall would do is keep us in" Paul should be ashamed to claim the mantel of small government.

    America needs smart government now to pave the way for small government in the future. If there is no wall soon our institutions will erode by the incoming hordes of progressivism. There will be no hope for liberty and small government if illegal aliens take over this country and vote for big government socialism for generations to come. As the great American patriot Franklin Roosevelt once practiced, "the ends justify the means."

  • loveconstitution1789||

    Poor sock trolls. They hate my views and hate the USA.

  • grb||

    Ya know he kinda looks like you if you squint your eyes a bit, but I confess you Right-types all look the same to me (on the other hand: Some of my best friends, etc....)

    Still, I never understood the troll's satisfaction in speaking with a phony voice, so you have my sympathy.

  • Tu­lpa||

    Lol you don't think it's obvious you're a sockpuppet?

  • grb||

    God, what a loser you are. A sockpuppet how? I speak in one voice - my voice - and I'm not full of bullshit as you frequently are.

    Poor little snowflake, try not to get so upset just because someone tells you things you don't wanna hear....

  • loveconstitution1789||

    Trolls having sympathy for other trolls.

    Big surprise

  • grb||

    And dang if I'll waste sympathy on you again.....

  • loveconstitution1789||

    Boo hoo

  • buybuydandavis||

    "When the NATION is being invaded by vile socialists"

    This is a fact the OBLs have to endlessly evade.

    Do you believe that big government is a violation of rights, or not?

    If you do, big government voters violate your rights. They are criminals. Importing big government voters is importing State Crime. It's a means of the ruling class to take your freedom.

    "Libertarian Moment"

  • TLBD||

    OBLs only have the mental capacity to understand policy based on theoretical libertopia where everyone abides by the NAP.

    They're fucking childish morons. There is no way around it.

  • BigT||

    When someone comes into your home despite your efforts to keep them out it is called a home invasion.

    So, yes, an invasion. Send them home without trial or detention.

  • Azathoth!!||


    Immigration and invasion are not the same thing. To conflate them is ridiculous. There's a reasonable debate to be had about immigration and how and to what extent it should be controlled. You can't just bypass it b y yelling "invasion!"

    Exactly!

    One immigrates by filling out and sending in an application.

    One invades by going to the border and crossing without permission.

    One is part of an invasion if one gathers up several thousand friends, in successive waves, to go to the border and cross without permission.

    One must know what an invasion is before getting alarmed.

  • chemjeff radical individualist||

    and shall protect each of them against Invasion

    Why of course! When the Founding Fathers wrote "invasion" in the Constitution, they were clearly referring to illegal immigration! Except - whoops, back in 1787, there was no concept at all of illegal immigration.

    So much for originalism!

  • loveconstitution1789||

    Yeah the states regulated immigration until 1808, when congress was allowed to regulate immigration and slavery.

  • buybuydandavis||

    racebaiterjeff wrong on the facts again

    He should stick with the feelz.

    They had the concept of illegal immigration, and wrote it into the Constitution.

    US Constitution, Article I, Section 9, Clause 1:
    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, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

    They explicitly wrote federal control of migration into the Constitution.

  • loveconstitution1789||

    +100

  • Jerryskids||

    The president is acting on that command and the fact that Congress is disobeying the command does nothing to diminish it.

    It might interest you to know that there are several other clauses in the Constitution besides the one you quoted - ones which seem to indicate that Art 4 Sec 4 isn't a blank check to do whatever it takes at all costs no matter what even if you have to spend 40 trillion dollars nuking Florida. If there's a dispute between the President and Congress over what's necessary to defend the border, well, there's a little clause in the Constitution about how no money shall be drawn from the Treasury but in consequence of appropriations made by law which seems to settle the issue in Congress' favor.

  • Tu­lpa||

    "which seems to settle the issue in Congress' favor."

    I wish people would just stop pontificating. No one who is talking has any idea how the court will decide this.

  • buybuydandavis||

    Yep.

    Also, the Constitution obligates Trump to "take care that the laws be faithfully executed", including immigration laws.

    Maybe he'll start fulfilling that obligation as well.

    They have to go back.

  • loveconstitution1789||

    +100

  • Ken Shultz||

    "That sweeping law represented the New Deal's most significant attempt to centrally plan the American economy during the Great Depression. One of the problems with the NIRA was that it authorized Roosevelt to take all sorts of unilateral executive actions, effectively making him a lawmaking power unto himself."

    It's easy to stand up for constitutional principles against a presidential power grab when the president is doing something we don't like. I despise central planning so much, I might be tempted to throw an argument of unconstitutionality at it--for just that reason alone. It's harder to stand up for constitutional principles in the face of a presidential power grab when the president is doing something we like, but a constitutional principle that we only stand up for when it happens to coincide with whatever policy we like isn't much of a principle.

  • Ken Shultz||

    There is one distinction between what FDR did in this case and what Trump is doing, which is that what FDR was doing in trying to manage the economy isn't part of the president's explicit job as Commander-in-chief. I don't think what the president is doing would be appropriate even if it were somehow constitutional, but if FDR had claimed the power to run an end around Congress on spending because he wanted to protect the United States from a security threat, that might be different.

    On the other hand, the Constitution also gives Congress the power to set immigration policy and declare war, both of which are powers of Congress that President Trump also seems to be doing an end around by building a wall without Congress' consent. I don't need to imagine what some future President Ocasio-Cortez might do with the power to declare an emergency against climate change and spend without Congress' consent. Even though I disagree with Congress' abdication of border security, I can see that what Trump is doing is wrong.

  • buybuydandavis||

    "There is one distinction between what FDR did in this case and what Trump is doing, which is that what FDR was doing in trying to manage the economy isn't part of the president's explicit job as Commander-in-chief."

    Article IV, Section 4
    "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion"

  • Ken Shultz||

    "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States . . . .

    To establish a uniform rule of naturalization, . . . .

    To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

    To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

    . . . .

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

    ----Article I, Section 8

    The President is the Commander-in-chief of the armed forces, but his power to defend against invasions is divided with Congress.

  • BigT||

    Congress has called an army and made immigration laws, and Trump is justified in using the army to repel an invasion.

  • Ken Shultz||

    The question isn't whether Trump's actions can be rationalized. The question is whether that rationalization stands up to scrutiny. Haven't seen anything that's persuaded me it does yet.

  • Ken Shultz||

    "On the other hand, the Constitution also gives Congress the power to set immigration policy and declare war, both of which are powers of Congress that President Trump also seems to be doing an end around by building a wall without Congress' consent."

    In the coming weeks, when all the silly people who claimed that Congress doesn't have the power to set immigration policy because the process of "naturalization" somehow doesn't include crossing our border and establishing residency? When they all reverse course and claim that the President doesn't have the right to circumvent Congress' enumerated power to set the rules of naturalization, they shoudn't be ridiculed for it. They should be congratulated.

    Hopefully, they'll learn something from the experience--that broad principles shouldn't be sold short in the name of one battle, especially when victory in the cause you're fighting for may depend on a different aspect of the same broad principle. Yes, Virginia, setting the rules for immigration is an enumerated power of Congress.

  • DenverJ||

    They have learned nothing; thru will learn nothing. The next time the current minority becomes the majority, watch how quick any remaining restraint on majority rule vanishes from congress. The next time the current out party regains the presidency, watch how quickly come the calls to expand the Supreme Court. I do not believe the current majority is that much more principled, either.

  • loveconstitution1789||

    Lefties will never be in charge of America again.

  • Ken Shultz||

    I wasn't only talking about politicians.

    I was also talking about people who comment at and write for this site.

  • Leo Kovalensky II||

    Yes, Virginia, setting the rules for immigration is an enumerated power of Congress.

    enumerate: to specify one after another : list

    You can argue that "setting the rules for immigration" is derived from an enumerated power, namely "To establish an uniform Rule of Naturalization" but to argue that it is enumerated, ie listed, when the word "immigration" isn't even in the Constitution is a bit of a stretch.

    I believe that I'll trust Andrew Napolitano's opinion on the subject.

  • Ecoli||

    Thirty million illegal aliens currently living in the US. Our government has done nothing to resolve the issue for decades.

    Sounds to me as if we are well past emergency on this issue. Build the wall, patrol the border, use technology, do what ever it takes to enforce our laws.

  • Valkanis||

    If the government has done nothing legally to resolve what you see an issue, that is your fault for voting for people who didn't do what you wanted. That doesn't make it ok for the president to blatantly disregard the Constitution.

  • Tu­lpa||

    "that is your fault for voting for people who didn't do what you wanted"

    So, what the fuck do you think Trump is?

  • Agammamon||

    Well, its not the illegals living among us who are destroying the country - its the completely legal far-left-and-right ideologues that are.

    So, I'm not seeing the emergency.

  • buybuydandavis||

    The imported big government voters are just one of the means the Deep State Globalists are using to destroy America.

    I see America being destroyed as a national emergency.

    Import Not Americans, Become Not America

  • Zeb||

    An issue doesn't become an emergency by being around for a long time. That's almost the opposite of what an emergency is.

  • Tu­lpa||

    ? MANY health conditions become emergencies after being chronic.

    You are explicitly wrong.

  • loveconstitution1789||

    I already gave you the definition of emergency, Zeb.

    You clearly refuse to accept reality.

  • Jerryskids||

    Since "whatever it takes" seems to include ignoring the Constitution, the rule of law and any vestige of limited government, what the fuck is the point of enforcing our laws?

  • chemjeff radical individualist||

    do what ever it takes to enforce our laws.

    "the ends justify the means"

  • buybuydandavis||

    "Constitutionality means *not* enforcing our laws"
    i.e.
    "muh anarchy"

  • Locris||

    "And according to Article I, Section 8, the federal spending power rests in the hands of Congress."
    Would seem the money has already been approved for spending.
    I guess the question be, how is it allowed to be spent.

  • Locris||

    "And according to Article I, Section 8, the federal spending power rests in the hands of Congress."
    And the money has already been spent.
    Just a question of how.

  • buybuydandavis||

    "If you ask Trump or his supporters, they will tell you that the declaration is perfectly lawful under a federal statute known as the National Emergencies Act of 1976, which authorizes the president to take various actions if he deems them to be necessary. Granted, that regrettable federal law is something of a blank check to the president.

    But the National Emergencies Act cannot supplant the Constitution. And according to Article I, Section 8, the federal spending power rests in the hands of Congress. Yet here we have Trump trying to claim the federal spending power for himself. "

    So dumb. All of a sudden, the National Emergencies Act is unconstitutional because Orange Man Bad!

    Notice he doesn't refer to a word of the act itself. He doesn't make an argument that Trump does not have the constitutional power to use monies *already* appropriated to defend the border.

    He just says the spending power rests in Congress, as if that's somehow an argument. Yeah, the Congress gets to appropriate money. And the President has the power to make decisions about how that appropriated money is spent. Chief Executive.

  • buybuydandavis||

    Trump had all the authority he needed on day one to build the wall and deport the invaders. He had an *obligation* to do so.

    Article IV, Section 4
    "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion"

    The Constitution obligates the federal government to prevent invasion.

    The Constitution obligates Trump to "take care that the laws be faithfully executed", including immigration laws.

    Trump is the first President in *decades* to actually even *attempt* to uphold the constitution with regards to immigration.

    Here are the actual laws on National Emergencies. Until Reason bothers to argue those, they're just talking about of their asses.
    Orange Man Bad!

    33 U.S. Code § 2293 - Reprogramming during national emergencies http://bit.ly/2Gu5SPT

    50 U.S. Code Chapter 34 - NATIONAL EMERGENCIES http://bit.ly/2Gtkdfu

  • loveconstitution1789||

    +100000

  • loveconstitution1789||

    The funny thing is Trump and Americans will get their border fence extensions AND more limited government.

    The more Lefties make the argument that government is out of control, the more Americans will want to ignore all the Democrats who want government to be out of control.

    Win-win-win

  • Sevo||

    "Extraordinary conditions do not create or enlarge constitutional power."

    Like the lap-dog press who learned they had a job to do once Trump was elected, you'd hope the SCOTUS had figured this out earlier,
    Right "that's a tax" Roberts?

  • IceTrey||

    Shouldn't we be asking if the National Emergencies Act of 1976 is itself constitutional?

  • loveconstitution1789||

    The Branches cannot share power or work together to address national emergencies?

    I have yet to find a clause that prevents the branches from solving problems together within the constitution framework of their limitations and powers.

  • loveconstitution1789||

    I personally think that Congress should have to line item appropriate every penny of federal money. The constitution does not require that though.

  • Tamfang||

    If the Wall Emergency reaches the SC, I predict that the Court will punt: "Given that by the President's own words a declaration of emergency is unnecessary, it is invalid, so we need not reach the constitutionality of the Act."

  • Longtobefree||

    No telling what they will say.
    Once they ruled a fee is a tax, nothing is certain anymore.

  • Longtobefree||

    "But the National Emergencies Act cannot supplant the Constitution. And according to Article I, Section 8, the federal spending power rests in the hands of Congress"

    And the congress has appropriated funds, and specifically authorized the President to reallocate certain funds in certain situations. Unlike a president spending money to bribe insurance companies to support a piece of legislation with no allocation of those funds at all. In fact, in spite of legal rulings to the contrary.

    The constitution is what the supreme court ways it is. (see 1st amendment, 2nd amendment, 4th amendment, interstate commerce, general welfare, etc) And the supreme court has not said the NEA is unconstitutional, so it is constitutional.

  • Heresy Hunter||

    So if the Supreme Court says that the first amendment doesn't mean anything, is it suddenly constitutional for the government to ban the publication of books it doesn't like? Is the court's power to interpret the highest law of the land really unlimited?

    No, the Supreme Court is not the Constitution. The Constitution is the Constitution, and only it determines what it says.

  • eyeroller||

    And according to Article I, Section 8, the federal spending power rests in the hands of Congress.

    It's Section 9 that is explicit about this.

  • ValVerde1867||

    I don't see how this is much different than Obama and the slime-o-crats shoving Obamacare down our throats. Anyhoo...the real emergency is the DC Swamp and it's endless corruption designed to save itself while the rest of the nation burns.

  • TommyInIdaho||

    Everyone from my Leftie local newspaper editor to George Will and now Reason is squawking about this move being a Constitutional crisis but it's an abuse of a statute if it's anything. I know that the National Emergencies Act provides for a joint-resolution override that has to be veto-proof to work. That's supposed to be the fail-safe to protect power with the legislative branch. If the law doesn't really do that, change it.

    I'd be interested to know if NIRA allowed for Congress to override the president and suspect Root is hiding that difference from us to make the case that Schechter applies to this instance when it doesn't. Or maybe it's just lazy writing. I guess I'll have to find out for myself.

  • TommyInIdaho||

    I do thank Root for providing a link to Schechter. I gave it a quick read and I don't think the National Emergencies Act grants the same sort of sweeping powers. Again, I do think Trump is misusing the act.

    What I do see in Schechter is grounds for bringing down our systems of regulations written by executive agencies that have the effect of law. Here Congress is most certainly repeating the mistakes of NIRA but it seems more diffuse as we have more agencies making the decisions.

  • atheistrepublican||

    It would be wonderful if Trump's excesses were to revive the moribund non-delegation doctrine.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online