Implications of Today's Senate Vote Against Trump's Border Wall "Emergency" Declaration

How the overwhelming vote against Trump's position could potentially affect the lawsuits challenging the legality of the declaration.

Earlier today, the Senate overwhelmingly voted to reject President Trump's "national emergency" declaration that seeks to use emergency powers to appropriate funds to seize private property to build the president's border wall. Twelve GOP senators joined all 47 Democrats to form a strong 59-41 majority against the declaration. In February, the House of Representatives also voted to terminate the emergency declaration, with 13 Republicans joining the Democrats in opposing the president. On few if any other issues has Trump faced so much resistance within his own party.

The majority against the declaration is not large enough to override a virtually certain presidential veto, which would require a two-thirds super-majority in both the House and the Senate. But the vote might nonetheless have more than just symbolic significance, because it could potentially impact the resolution of the many lawsuits challenging the legality of Trump's declaration.

As a narrowly technical legal matter, the vote should have little or no effect. The cases ultimately come down to the meaning of the relevant statutes and constitutional provisions, which cannot be changed by a congressional vote that (if successfully vetoed by Trump) does not itself change the law. Nonetheless, today's vote could have an indirect impact. That is so for three reasons.

First, the vote reinforces the plaintiffs' argument that Trump's declaration is an attempt to undermine the separation of powers by circumventing Congress' control over the power of the purse. It makes clear that a large majority of members of Congress oppose the president's actions and do not want to allow him to spend additional funds on building the wall. GOP opponents of the declaration also emphasized the risk that it might set a dangerous precedent for presidents of both parties, a factor that might carry some weight with judges, as well:

"Declaring a national emergency to access different funds sets a dangerous new precedent," GOP Sen. Rob Portman of Ohio warned in remarks on the Senate floor ahead of the vote. "It opens the door for future presidents to implement just about any policy they want."

The senator went on to say, "a future President could seize industries … a future President may well say that climate change is a national emergency and use emergency authorities to implement the Green New Deal," referencing a sweeping progressive policy proposal to tackle global warming.

Second, historically courts are sometimes reluctant to rule against the signature policy of the president and his party, for fear of generating a massive political backlash. The congressional vote might help allay any such concerns by further underscoring the extent to which both the wall and the emergency declaration are highly unpopular.

Finally, it is significant that the dissenting GOP senators cited constitutional concerns as a reason to oppose the president on this issue. This reinforces the point that the emergency declaration is not one of those issues on which the views of legal and political elites divide along partisan/ideological lines. A large number of conservative and libertarian legal commentators believe that that declaration is illegal, as do the vast majority of liberal ones. This state of affairs makes it far more likely that at least some conservative judges will vote to strike down the declaration. While judicial decisions certainly don't always follow the views of legal scholars and other specialists, judges do often give at least some weight to expert opinion, particularly that of experts whose judicial and political philosophies are aligned with the judges' own.

None of these factors are likely to shift the decisions of judges who already have a strong view on one side or the other of these cases. But they could potentially affect some who might be on the fence.

In my view, the declaration is illegal for reasons that hold true regardless of what the Senate did today. The National Emergency Act does not allow the president to declare an emergency over an issue that is not a sudden crisis. Even if he can declare an emergency, the relevant statutes do not authorize him to reallocate funds and seize private property to build the wall. I also object to the wall on moral and policy grounds, and decry the great harm likely to be caused by using eminent domain to take property from unwilling owners. As GOP Rep. Will Hurd explains using eminent domain to build the wall is an affront to private property rights.

I don't doubt that many of those who support Trump's declaration also have strong views that are unlikely to be shifted by today's events. The Senate's vote against the president is unlikely to have more than a marginal effect on the ultimate resolution of this issue. But if it turns out to be a close case in the minds of the judges who rule on the matter, that marginal impact could be decisive.

UPDATE: On March 25, 12:30-2 PM, I will be speaking at this panel on presidential emergency powers co-sponsored by the Cato Institute and the American Constitution Society. The event is free and open to the public.

Comments

[MiloMinderbinder]

Just how many people would have to rush the border for it to be a crisis?

What if they don't "suddenly" rush but just able toward it?

[John]

Somin does not believe the federal government has the power to do anything to secure the border. There has never been an immgration or border control measure he has ever supported. He just isn't honest enough to admit that.

[nonzenze]

I won't speak for him, but clearly the Federal Government has the power to secure the border. This would be by Congress passing appropriate legislation and the President signing and executing it.

As it happens, the President is not the entire government. The fact that he was unable or unwilling to pass border legislation while his party had a majority in both houses certainly ought not to empower him to ignore Congress now.

[Brett Bellmore]

It's a bit of a issue, certainly: The power to repel invasions is in Article 1, Congressional powers. OTOH, the actual repelling is supposed to be done by the military, which is under the Executive branch.

But then again, Article IV, section 4, which is NOT restricted to a particular branch, says, "The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence."

So the federal government, not specifically Congress, has an affirmative obligation to repel invasions. Yet here we find ourselves, in a situation where the President wants to do so, and Congress wants the invasion to be permitted.

I don't think the founders actually anticipated that this could happen, and so the Constitution doesn't contemplate this situation.

[nonzenze]

You know the General in charge of the US Northern Command testified under oath that the situation at the border did not constitute any sort of military threat.

Now, the President isn't obligated to listen to the professionals in the military that he commands. And if he says jump, they surely outta jump (unless prohibited by the UCMJ). But we as citizens are entitled to view his professional judgment on the matter as being informative.

[Brett Bellmore]

I know. Civilian command of the military works, but it has a substantial lag time, in that every incoming administration faces a military command structure the previous administration created.

The military responds to the political branches, but with a big lag.

And so if a change of administration brings a change of policy, it's quite common that the military brass will continue pushing the prior administration's policies for a few years, before the new administration has pushed its own people into those positions.

[nonzenze]

Yikes man, the guy is a 3-star general. Accusing him of carrying water for a previous administration instead of giving (under oath!) his honest opinion is a bridge too far.

[James Pollock]

" the actual repelling is supposed to be done by the military"

Close. The actual repelling is supposed by the done by the militia.

Of course, that's for actual invasions.

[Stephen Lathrop]

Brett, you are full of beans. There is no way to read constitutional language about repelling invasions as applying to immigration, legal or illegal. If you want to draw attention to a large-scale flow of illegal immigration across the border, you are free to call it an invasion, as a figure of speech. People will understand what you mean.

If you instead try to call it an invasion, while insisting on the constitutional sense of the term, nobody will understand what you mean, except in terms of criticizing your emotional stability. You may want to do that, because you may want the nation to join you in expressing irrational alarm (of the sort that would be rational facing a military invasion), but in that you are an outlier, and only a small minority want to join you. The rest just think you are full of beans.

[Rev. Arthur L. Kirkland]

Just how many people would have to rush the border for it to be a crisis?

Including or excluding impoverished, unarmed, desperate people -- some of them children or even toddlers -- seeking to improve their lives and the United States, many of whom seek asylum?

[Armchair Lawyer]

Don't you want there to be housing for those "impoverished, desperate people" when they get here? (who you feel you are superior to, because they're poor)

[Rev. Arthur L. Kirkland]

How is that relevant to "invasion," you bigoted, disaffected rube?

[Armchair Lawyer]

Even "invaders" need housing, right?

Don't you want appropriate housing for them all?

[regexp]

Don't you want appropriate housing for them all

There are no shortage of charitable organizations in this country that would be more than happy to work with such groups to find them homes and help them get settled.

[Stephen Lathrop]

Do you refer to invaders, or "invaders"? The former bring their own houses, or plan to force you of yours. That's not what's happening, right?

[KevinP]

Could you post your address? I will be happy to buy bus tickets for these impoverished people to come to your home and live with you.

[regexp]

Could you post your address? I will be happy to buy bus tickets for these impoverished people to come to your home and live with you.

There are thousands of families who open their home to refugees and impoverished people in this country. And have been doing so for decades. What do you have against people opening up their homes for people less fortunate than them.

Or the more appropriate question: when did you become a heartless racist who feel it necessary to try to control what other people do?

[Rev. Arthur L. Kirkland]

As always, this site attracts a spirited gathering of Libertarians For Authoritarian Immigration Practices, mostly because of all of the diffusely intolerant right-wing authoritarians already hanging around.

[iowantwo]

You got him on that one Rev. The constitution clearly states young'ins that is poor and destitute from across the globe have unlimited access to the United States.

[Rev. Arthur L. Kirkland]

You will and should be replaced, regardless of how much Steve King, David Duke, and Donald Trump whimper and rant about it.

[MKE]

Replaced by whom Rev. Kirkland? By democrat anti-Semites or democrat socialists? Truth to tell, probably not a lot of difference between them.

[DeleteGrossLiberals]

They seek to improve their lives by taking OUR money. They don't intend to become self sufficient, and they aren't even capable of so becoming, even if they did.

[Rev. Arthur L. Kirkland]

I doubt that the immigrants seeking to become part of America today are substantially different from those who improved America for decades and centuries.

I also doubt that our current batch of authoritarian bigots is substantially different from those who brought us earlier, successive waves of intolerance and ignorance aimed at Italians and Jews, blacks and Catholics, gays and the Irish, Hispanics and Asians, agnostics and atheists, women and other Hispanics, Muslims and other Asians. The current crew seems nothing special, so I expect its calls for bigotry and insularity to fail as did those of its predecessors.

[DeleteGrossLiberals]

If you don't look at a group of Italians and a group of Muslims and see huge differences, you're either delusional or stupid.

[James Pollock]

Yeah, the Italians brought organized crime with them. Huge difference!

[MKE]

Thank you for your erudite views of history Rev. Kirkland. I agree that our current batch of authoritarian democrat anti-Semites and democrat socialists is not really substantially different from the democrats who imposed Jim Crow and slavery on this country.

[gdanning]

I understand Prof. Somin to mean that emergency powers are meant to be exercised when a crisis arises so suddenly that it must be dealt with before Congress has time to act. That would not seem to apply to building a wall, since Congress has indeed had time to consider that option, but has rejected it. Indeed, given that building a wall will take many months, it is hard to see how it fits within the rationale for granting emergency powers to the President, even if the arrival of large numbers of migrants had, in fact, been a sudden occurrence

[Brett Bellmore]

Maybe they should have written that into the statute,then.

[Alpheus W Drinkwater]

Brett, you sure are quick to drop any pretense to textualism when necessary! Surely use of the word "emergency" must have some meaning on its own, regardless of the fact that the statute fails to define it further.

[John]

The National Emergency Act does not allow the president to declare an emergency over an issue that is not a sudden crisis.

What is a sudden crisis other than a problem crossing a threshold and becoming so bad that the President feels it must be dealth with now? What is and is not a "national emergency" is a political question to be worked out by Congress and the President and ultimately the voters if there ever was one. No way in hell shoudl or do the courts have the power to step in and decide what really is and is not a national emergency. The President is going to get enormous deference on that question and no amount of semantic nitpicking is going to win the day.

the relevant statutes do not authorize him to reallocate funds and seize private property to build the wall.

If there were a hostile army on the border and Congress were out of session, it is your position that the President couldn't use emminent domain, an enumerated power in the Constitution, to seize private property to build fortifications to stop it? Really? Is that your final answer? You are applying legal standards here that would be absurd in other contexts and are only applied here because you don't like the action involved here.

[bevis the lumberjack]

"If there were a hostile army on the border and Congress were out of session....you are applying legal standards here that would be absurd in other contexts"

You mean, like, in the context of an actual national emergency instead of a contrived one?

[James Pollock]

"If there were a hostile army on the border and Congress were out of session....you are applying legal standards here that would be absurd in other contexts"

The President has his own authority, as commander-in-chief of the armed forces, to respond to an actual hostile army on the border. (Note that the Founders tried to limit this, too, by disallowing multi-year appropriations for maintaining an army). In that situation, the President doesn't need authority borrowed from Congress.

"No way in hell shoudl or do the courts have the power to step in and decide what really is and is not a national emergency."

If it lasted long enough to come to trial in the federal courts, the situation is in no way still "emergent".

[MKE]

Wow....excuse me, ignorance at this level is almost palpable so I was a little shaken. "If it lasted long enough to come to trial in the federal courts, the situation is in no way still 'emergent.' " So, apparently only really short emergencies are truly national emergencies? Better hope your troubles aren't long term or you're SOL.

[Brett Bellmore]

"The National Emergency Act does not allow the president to declare an emergency over an issue that is not a sudden crisis."

I read it just last week. I recall no such language. Rather, simply says that the President declares when there's an emergency.

[Armchair Lawyer]

Exactly. I remember the National Emergency over conflict diamonds. They were being imported for years before it was declared.

[iowantwo]

This is a law blog, no fair quoting the actual law. (Besides, it's irrelevant because President Trump disturbs someones chi)

[David Nieporent]

This is a law blog, no fair quoting the actual law.

Uh, he didn't quote it.

[LiborCon]

"the President declares when there's an emergency."

So it's basically an American "Reichstag Fire Decree".

[Brett Bellmore]

Yes, except a bit more limited than that, and with actual statutory basis.

[Alpheus W Drinkwater]

No, the statute says "emergency." That is an English language word that has meaning all on its own, whether or not the statute gives any further meaning to it. How in your mind does "emergency" mean "whatever a Republican president wants to do that Congress won't approve."

[MKE]

Hmm. No. Congress speaks through its enactments. Congress has not either by the current funding measure or any other enactment, disapproved of anything. More to the point, they approved of the use of NEA authority via that act and quite clearly left that authority untouched in the recent funding enactment.

[NToJ]

"What is and is not a "national emergency" is a political question to be worked out by Congress and the President and ultimately the voters if there ever was one."

You mean, like, by a 59-41 vote against?

[Armchair Lawyer]

"And the president"

You missed that part.

[NToJ]

They aren't working it out? When the OP is discussing the veto, who is it you think exercises that power?

[Armchair Lawyer]

It looked like you missed the whole president part in your 59-41 response. I was reminding you. It's more like 59 - 74. IE, the president counts for ~33 votes in the senate, if voting nay.

[Sarcastr0]

Your logic says that so long as Congress can't override a veto, the President can unreviewably declare a permanent crisis.

[Brett Bellmore]

Yeah, pretty much. The NEA is a bad law, but Congress DID enact it, and just the other day refused to even consider a bill modifying it.

Under those circumstances why should Trump, and only Trump, not get to use that law?

[Sarcastr0]

Trump is attempting to use the law in a novel way, both substantively and purposively.

Congress refusing to modify the law was due to their commitment to control this particular abuse of the law. You will no doubt argue it's just because it's Trump, but it could as easily be how directly this use attacks Congressional intent about the border.

Preventing the President from declaring a permanent crisis seems exactly the kind of thing our system of Constitutional review is meant to address.

[Brett Bellmore]

Their commitment to ONLY control this particular abuse. Because they don't mind abuse, (Almost all uses of the NEA have been for things that aren't emergencies.) but they do mind the wall being built.

[Sarcastr0]

The refusal to isolate this abuse out is not a sign they don't care about future abuses.

[DeleteGrossLiberals]

Yes, it is a sign of that. In fact, it's proof of that.

[Krayt]

I'm glad our constitutional design is such that the top guy's need for "emergency powers" is limited to this issue and not the emergency power to issue law by decree as in Venezuela.

History shows, a with Greece, Rome, 1930s Germany, and many more, that they never give it up.

Oh, wait. Regulatory power is just such ability, be it restricted though just to burdensome things that might engender kickbacks.

[James Pollock]

"History shows, a with Greece, Rome, 1930s Germany, and many more, that they never give it up."

Not quite never, although you might have to go all the way back to Cincinnatus to find the counterexample.

[NToJ]

Right, and if the President vetos it, that is one way for a "political question to be worked out by Congress and the President and ultimately the voters" right?

[James Pollock]

" if the President vetos it, that is one way for a "political question to be worked out by Congress and the President and ultimately the voters" right?"

And ultimately the voters pick new Congress and President, if you're interested in the long game.

[JesseAz]

7 votes short. Failed math didya?

[NToJ]

Short of what? If the purpose is to force a veto on an unpopular resolution so that "the voters" can do something about it, how many votes does that need?

[iowantwo]

Still seven votes shy of defeating the President's declaration. That's the Constitution.

[Rev. Arthur L. Kirkland]

A better American government will likely tear down any wall constructed consequent to this declaration. That's the reality-based, improving, modern, liberal-libertarian America.

[DeleteGrossLiberals]

When the wall works, Americans will not support removing it.

[James Pollock]

"When the wall works, Americans will not support removing it."

This isn't a problem that will come up, because the premise is invalid.

Given Trump's known history of employing illegal immigrants at Mar-a-lago, can we build a wall around it?

[MKE]

There probably is one. Like the one around Obama's heavily subsidized DC mansion and the various walls and security around elite democrat enclaves. Democrats like big houses and security for themselves, probably a throwback to the collective paranoia they probably experienced as slave masters.

[MKE]

Please let a democrat run on that as a campaign promise. I'll donate to them if they do.

[MatthewSlyfield]

"What is a sudden crisis other than a problem crossing a threshold and becoming so bad that the President feels it must be dealth with now?"

A wall that will probably take years to build (would take at least 18 months under ideal conditions) is NOT dealing with anything NOW.

[swood1000]

But if it turns out to be a close case in the minds of the judges who rule on the matter, that marginal impact could be decisive.

But would a court be free to even list this as one consideration given the Supreme Court's ruling about legislative vetoes? Would that be legislative veto lite? More than a majority but less than 2/3 gives the legislature the ability to have the courts declare the action either unconstitutional or in violation of the statue?

If the legislature gives the president the authority to declare an emergency based entirely on his own judgment and without specifying any constraints then what gives the court the authority to substitute its judgment for that of the president? If the legislature had wanted it to depend on some criterion apart from the president's judgment then wouldn't they have specified that? The court could say that such authority cannot be delegated to the president but considerations of national security might give them pause.

[John]

All of that is exactly correct. And understand that the Constitution only requires that money be appropriated by Congress before it is spent. It says nothing about how specific Congress needs to be about the way that money is spent once it is appropriated. Congress could if it wanted to pass a budget that said simply "$3 trillion is approrated to be used for all authorized purposes during the fiscal year 2019" and be in compliance with the Constitution. It is up to Congress how much discretion the exectutive gets in spending appropriated money. Trump using this statute to reprogram previously appropriated money raises no Constitutional issues.

[swood1000]

Well, I wouldn't go quite that far. The congress gave the president carte blanche to declare an emergency but they set quite a few limitations and requirements on actions he could take pursuant to that authority. For example he will have access to certain but not all funds available to the military for construction.

Though the Constitution may only require that money be appropriated before being spent the president is not anywhere given access to all appropriated funds.

[JesseAz]

We already had this fight in years ine and two of trump. Ilya and Democrats lost. President had sole authority to decide what constituted a security risk with legal immigration.

[Stephen Lathrop]

. . . what gives the court the authority to substitute its judgment for that of the president?

I suppose what might do it would the court's recognition of a competing constitutional interest, or two, or three.

The first, and maybe the more formidable of the three, of course, is the power of the purse. I don't think that is likely to be discounted to zero in any court.

The second would be a secondary question?whether delegated authority from a previous congress ought to bind and prevent a succeeding congress from exercising its constitutionally primary power of the purse. Maybe a delegated emergency power can't legitimately outlast the congress which delegated it.

And maybe a third question could be found in whether a presidential veto should even be permitted in defense of a power which the president can only legitimately claim as a loan from congress?a claim that certainly loses at least some of its legitimacy after both houses vote their desire to take their enumerated and accustomed power back. Perhaps a court could see that as re-opening the question of a legislative veto in a new and appropriately limited context.

[swood1000]

The first, and maybe the more formidable of the three, of course, is the power of the purse. I don't think that is likely to be discounted to zero in any court.

Congress already exercised its power of the purse in enacting this statute. They're free to exercise it again but if the president doesn't agree they can only do so by overriding.

The second would be a secondary question?whether delegated authority from a previous congress ought to bind and prevent a succeeding congress from exercising its constitutionally primary power of the purse. Maybe a delegated emergency power can't legitimately outlast the congress which delegated it.

But how many instances do we have of Congress delegating authority? Must all such delegations be renewed every two years? Is that what the Constitution requires?

And maybe a third question could be found in whether a presidential veto should even be permitted in defense of a power which the president can only legitimately claim as a loan from congress

Such limitations can't be located in the Constitution but perhaps the Constitution, as a living document, has developed them?

[Stephen Lathrop]

swood, perhaps you and I differ on what it is that congress has actually delegated. I suggest that the power of the purse is not part of it. Congress always owns the power of the purse, all of it, and can't delegate it even slightly, or for any time interval. So how can the president's veto power touch a congressional action to exercise a power which the president can not share?

The president owns a power to veto bills. Votes in congress to tell the president he can't have money for purposes congress has disapproved don't look like bills to me. Congress does not need the president's involvement?let alone his approval?to exercise its most important enumerated power.

If congress wants to tell the president he can't have money for a particular purpose, there is no super-majority requirement for the exercise of that congressional power, and no veto power by which that power can be discounted to zero. The president owns none of the power of appropriation, ever, except with the explicit cooperation of congress?which in choosing to cooperate retains the power in its own hands.

[Stephen Lathrop]

swood, are you sure that is a complete account of the premises congress used when it framed the law. Didn't they have a legislative veto in the act, which was subsequently struck down, leaving the rest of the language intact?but transforming the separation of powers issue in a way congress had not contemplated? If I have that right, it seems pertinent.

[JonFrum]

"How the overwhelming vote against Trump's position ..."

Fifty-nine votes out of 100 is not overwhelming under any reasonable definition of the word. Fifty-nine out of 100 is just nine out of fifty votes over a 50-50 split. And eighteen percent of the way from a tie to unanimity in not anywhere near 'overwhelming.' Using these propaganda terms just insults your readers, and does not invite consideration of your position. Rather, it suggests that you are certainly a dick.

[John]

Since it won't override the veto, it is a meaningless majority.

[kramartini]

67 votes is the minimum threshold for a vote to be "overwhelming"...

[Placeholder Name]

Exactly. It can't be "overwhelming" if, as the author states, "[t]he majority against the declaration is not large enough to override a virtually certain presidential veto." It is were veto proof, then it would be overwhelming.

[Krayt]

Mmmmmmany are the 59-41 votes on hot button issues, with the president's party negotiating internally heavily for purple states' senators to be able to vote for it while the plan is a veto override failure.

They can budget 9 such senators who can claim they voted for it while no risk of actual passage thanks to the veto.

It really gets to be fun if one of the senators is a sponsor but does not fit in that budget so must vote against their own bill.

[M.L.]

Obama: Declares national emergencies to help
Somalia
Libya
Yemen
Ukraine
South Sudan
Central Africa
Venezuela
Burundi

TRUMP: Declares national emergency to help AMERICA.

[bernard11]

Beg the question much?

[Rev. Arthur L. Kirkland]

Spending money on a new wall in current conditions would not help America, although I recognize that disaffected, intolerant right-wingers reject that point.

[Armchair Lawyer]

At least you recognize it.

[Rev. Arthur L. Kirkland]

I understand bigoted, stale-thinking, left-behind losers better than do most people who do not live in our can't-keep-up backwaters. I was raised in a downscale, backward, intolerance-infused, half-educated community. I was fortunate enough to leave on the day of high school graduation and never go back but I still remember the dysfunction.

[Armchair Lawyer]

I see. Converts always make the best zealots.

[KHP54]

The oikophobia is strong in this one. Feel the hate, Rev.!

[Rev. Arthur L. Kirkland]

Everybody dislikes something, KHP54.

I dislike ignorance, backwardness, and bigotry.

You dislike black people, gay people, immigrants, Muslims, big-city inhabitants, educated people, Democrats, mainstreamers, modern people . . .

[MKE]

And I dislike democrat anti-Semites and democrat socialists.

[iowantwo]

My dog read your response and says you're wrong. She's really smart,

[MKE]

So, Rev. Kirkand, do you speak for all disaffected democrat anti-Semites and democrat socialists? Just curious.

[jph12]

What are the implications of both the House and the Senate refusing to consider bills amending the National Emergencies Act to alleviate the separation of powers concerns (which would be a very good thing)? It seems to me that if they aren't willing to take any substantive action, this is mostly just performative theater.

[Brett Bellmore]

It's not theater, except to the extent they pretend they're concerned about constitutional concerns, rather than just determined that the border remain undefended as illegal border crossings reach ever higher levels.

[jph12]

"It's not theater, except to the extent they pretend they're concerned about constitutional concerns,"

Which is what most of them are doing.

"rather than just determined that the border remain undefended"

The border isn't undefended right now, and won't be undefended in the future regardless of whether the stupid wall is ever built.

"as illegal border crossings reach ever higher levels."

They aren't. Unless things have changed a great deal recently.

[Brett Bellmore]

"The border isn't undefended right now, and won't be undefended in the future regardless of whether the stupid wall is ever built."

Ok, technically, if your house catches on fire, and you spit on it, it can't be said that you're not doing anything about the fire. You're just not doing enough.

That's what's going on now: We're not doing enough to defend the border to convince illegal immigrants that we're serious, and so the numbers are rapidly growing.

Things HAVE changed a great deal recently. Illegal immigration is now 6-7 times higher than early in Trump's administration, and climbing fast. February was the worst year for it in over a decade, and March is shaping up to be still worse.

Basically what's happened is that potential illegal immigrants have looked at events in the US, and concluded that our government doesn't have the will to stop them, and the flow is turning into a flood, especially with the organized caravans.

When Trump took office, there was a sudden, huge drop in illegal immigration, in response to the perceived change in US policy. Now the world has decided the change wasn't real, has correctly figured out that Congress WANTS illegal immigration. And are reacting accordingly. It's going to become that much harder to stop going forward, because of that.

[James Pollock]

"February was the worst year for it in over a decade, "

Yeah, February was a tough year all around.

"When Trump took office, there was a sudden, huge drop in illegal immigration, in response to the perceived change in US policy."

In the sense that a downward trend that had started years earlier continued.

" has correctly figured out that Congress WANTS illegal immigration."

Well, they don't NOT want it enough to take effective action. But "effective action" doesn't include boondoggle construction projects, it would include significantly raising the cap on people who can hear deportation hearings, and a staffing ramp-up to match. Any plan that doesn't include that step, isn't serious. That includes Herr Trumpenfuhrer's vanity building project.

[Brett Bellmore]

Sorry, I've looked at the numbers. That's not true: Illegal border crossings plunged dramatically in the 3 months after Trump took office. Dropped by about 75% IIRC. That wasn't a continuation of a trend, it was an abrupt change.

Then they started creeping back up, and late last year the creep turned into a sprint.

Potential illegal immigrants actually follow US politics on this topic. They can see when an administration hostile to illegal immigration takes office, and they can see when Congress refuses to let that administration do anything about it.

I agree that the wall, by itself, wouldn't accomplish much. But it is a necessary part of a comprehensive solution, because you can't leave ANY huge holes, and walking across the border is available to the poorest of illegal aliens, and to the worst of them, because entry by other routes requires passing at least some minimal vetting, but there's no vetting AT ALL for walking across the border.

And it's not a matter of Congress not merely not wanting border security enough to do anything about it. They affirmatively want the border insecure, or else they'd have no reason to fight Trump over it.

[James Pollock]

" it is a necessary part of a comprehensive solution, because you can't leave ANY huge holes, and walking across the border is available to the poorest of illegal aliens,"

In a nutshell, this is why the wall is useless.

We'll build a wall across 10% of our border, and it will stop 0% of the people who really want to get into this country. If you built a wall around 10% of a prison, would you expect it to keep any prisoners in?

[Brett Bellmore]

That's why I wouldn't stop at 10%.

[James Pollock]

Is Canada going to pay for it? Atlantis?

[MKE]

Not too smart pollock (you, not the fish). Congress did not specifically forbid access to NEA funds in its latest enactment thereby leaving in effect access to all funding activated with an NEA declaration (which incidentally was enacted by Congress in case you didn't know). Kind of seems, reading the statues, Congress intended the President to do exactly what he is doing.

[Sarcastr0]

Acquiescing to the current Constitutional crisis in order to prevent future crises is not a good negotiation tactic.

[jph12]

You should preface every post with a disclaimer explaining that you don't actually understand what you are responding to but are charging ahead anyways. It will save everyone a lot of time.

[Bob from Ohio]

"current Constitutional crisis "

There is no current Constitutional crisis. The question of whether the declaration complies with the statute is an ordinary legal question.

[James Pollock]

"There is no current Constitutional crisis. The question of whether the declaration complies with the statute is an ordinary legal question."

Or, there is a current Constitutional crisis, and because of that current Constitutional crisis, whether or not the declaration of emergency complies with the statutes is a moot question. Does Congress have the power to write a statute that transfers some of its Constitutional power to the President? Hint: No, they do not. So if they write and pass a statute that purports to do so, that statute is void.

[MKE]

You might need to re-consult your "constitution for dummies" manual.

[Brett Bellmore]

"But the vote might nonetheless have more than just symbolic significance, because it could potentially impact the resolution of the many lawsuits challenging the legality of Trump's declaration.

As a narrowly technical legal matter, the vote should have little or no effect. "

So, what you're saying is, your hope of winning is if the relevant judges say, "Screw the law, Trump is losing anyway!"? That's a heck of a thing for a legal professional, a teacher of law, to be promoting.

"Finally, it is significant that the dissenting GOP senators cited constitutional concerns as a reason to oppose the president on this issue."

It's significant that the bill to actually address the constitutional concerns with the NEA, rather than just stop this particular exercise of the power it gives Presidents, is going nowhere.

What strikes me as significant is that this many Republican Senators want to retire. I wouldn't have expected that.

[bevis the lumberjack]

"What strikes me as significant is that this many Republican Senators want to retire. I wouldn't have expected that."

Good Lord. That's a little dramatic. "Any vote in opposition to a deeply unpopular President is suicidal". It's gonna be a lot more complicated than that.

Here in Texas, for example, Cornyn and Cruz better watch their asses. They just voted in favor of an action that is going to piss off a powerful group of people here who have very deep pockets and long memories.

[Brett Bellmore]

Trump isn't a deeply unpopular President, when it comes to Republicans. He's nearly the most popular President in history so far as Republicans are concerned.

And if you're a Republican Senator you have to get past a Republican primary to reach the general election.

So, yes, I think some of those Senators just announced their retirement.

[James Pollock]

"Trump isn't a deeply unpopular President, when it comes to Republicans. He's nearly the most popular President in history so far as Republicans are concerned."

That should scare the shit out of any Republican that can think straight.

[Brett Bellmore]

Not as much as people should be scared of Bernie. A red diaper baby, raised by literal Stalinists, history of praising communist dictators, is looking competitive for the Democratic Presidential nomination?

What's Trump done that ought to excite comparable fear? Exhibited a potty mouth?

[James Pollock]

"What's Trump done that ought to excite comparable fear?"

If you can't think of anything, it's because you willfully choose to have it that way.

How about disclosing confidential material directly to the Russians? That's cool?

How about releasing Iran from its commitment not to seek nuclear weapons?

[Brett Bellmore]

Sharing confidential information with an enemy who is also fighting the same other enemy as you is actually pretty routine.

How about shipping $1.2B in small, unmarked bills to Iran, so they could afford that nuclear program? I thought that was pretty gutsy of Trump. Oh, wait...

Trump didn't release them from their commitment, he stopped pretending they were complying with it.

[Rev. Arthur L. Kirkland]

You are going to hate the next few decades of American progress, Mr. Bellmore.

But you seem to be positioned to enjoy seething about it.

[James Pollock]

"Trump didn't release them from their commitment, he stopped pretending they were complying with it."

The people who knew what they were talking about, on the other hand...

[MKE]

Iran made such a commitment? when was that? Before or after getting a pallets full of cash?

[MKE]

Yes, pollock, also might frighten democrat anti-Semites and democrat socialists.

[Sarcastr0]

Even in cases where a vote is clearly against public opinion at home (state or district) and even in cases where it is clearly politically damaging, they almost always come around to Trump.

Why? Simple. Because even if they're on the wrong side of a majority of their constituents, Trump will go to war over the disloyalty and kill the member of Congress with Republican partisans. Without Republican partisans no Republican can win anywhere.

[Brett Bellmore]

I looked over the list. Of the 12, only two of them have terms that end in 2020. Collins can probably survive the vote with crossover votes, and Alexander had already announced his retirement. (And I'd bet good money that at least a couple more of them will decide to retire before their next election.)

That's not a coincidence. Every Republican Senator who was facing the voters in 2020 and not from Maine voted "no".

This isn't how Senators act when voting "no" is politically damaging. It's how they act when voting "yes" is political suicide if the voters don't have time to forget what you did.

[Sarcastr0]

Your post is in alignment with what I excerpted.

[Brett Bellmore]

Not quite. You're suggesting they're coming around to Trump in spite of doing so being politically damaging.

I'm pointing out they're acting like NOT taking Trump's side is politically damaging. Only the ones who have no reason to fear an immediate response from the voters voted YES.

[James Pollock]

I'm suggesting that some voted the way they did knowing their votes wouldn't matter. You might get a surprise if you assume they'll vote the same way, knowing their vote will matter.

[Sarcastr0]

I'm suggesting it's damaging either way, but dang near fatal to break from Trump.

[James Pollock]

Are you looking at the long-term, or the short-term? Stickinig with Trump gets the wall built... YAY! say party loyalists... but does absolutely nothing to actually solve the problem, and kills pretty much any chance to do anything that will actually improve the situation. Look back to how dangerous it was to buck W's war ambitions post 9/11, through the 2004 election... and then ponder how dangerous it was to BACK the war in 2006. The voters finally figured out that the war was a massive mistake, and took it out on the twits who backed it.

The voters take it out on politicians who take unpopular stands... but they eventually catch up to the finger-in-the-wind, which-way-is-the-wind-blowing type, too. It just takes longer.

[Brett Bellmore]

As I said below, JUST building the wall doesn't solve the problem. It is, none the less, a reasonable part of a comprehensive solution.

If it didn't do anything to solve the problem, you wouldn't have seen this vote; Congress wastes more money on a slow week than Trump proposes to spend building the wall.

The only reason there's this big fight is because building the wall would help some, and worse: Tearing it down later would be conspicuous.

[James Pollock]

"As I said below, JUST building the wall doesn't solve the problem. It is, none the less, a reasonable part of a comprehensive solution."

It isn't. It's a waste of time, money, and effort.

"If it didn't do anything to solve the problem, you wouldn't have seen this vote; Congress wastes more money on a slow week than Trump proposes to spend building the wall."

Which doesn't in any way mean that the various Congresspeople wouldn't prefer to waste the money in a completely different way.

"The only reason there's this big fight is because building the wall would help some"

Building the wall helps some wall-construction contractors, and nobody else.

[Bob from Ohio]

"What strikes me as significant is that this many Republican Senators want to retire."

No one will either win or be defeated by a vote in early 2019. Voters do not act that way.

[James Pollock]

"No one will either win or be defeated by a vote in early 2019."

Unless you count North Carolina's Ninth District.

[Armchair Lawyer]

Oh Ilya,

1. You get one point right. As a "technical legal matter" the vote should have little to no effect. Because it is not a law. The judges should rule based on the law. Not based on the political situation. To do otherwise subjects the law to whatever the swaying political winds think is convenient at the time.

2. "undermine the separation of powers by circumventing Congress's control"

Congress granted the president discretion over a small pot of military construction funds, via laws that were written and passed by Congress, and signed by the President. This was their choice. Now, a section don't like the choice they made, but don't appear to have the numbers needed to change the law they passed. Moreover, many past presidents have used the NEA to redistribute military construction funds towards a different military construction purpose.

3. "Courts are sometimes reluctant to rule against".

Courts should rule based on the law. Not via the media pressure of at the time. "Unpopularity" is not a good reason for the court to overturn a law. Taxes aren't popular either. This doesn't mean the 16th amendment should be overturned.

[Armchair Lawyer]

4. "Constitutional concerns"

There are issues with the NEA. These issues should be addressed by Congress, in a new bill that returns power back to Congress. Mike Lee's bill is an excellent one. But Democrats Won't Vote For It. Why? Because Democrats want to use the NEA in the future to do massive changes. What is needed is sweeping legislation to return the NEA's authority to Congress. A court case that simply overturn the Trump authorization, while keeping any future authorization available for a Democratic administration is a lose-lose situation. Democrats will never vote to restrict the NEA in such a situation. Because then they couldn't abuse it.

Then, what you get, is a government that doesn't run on laws, doesn't run as a fusion between the Congress and president, but a government that runs on "popularity". One where future Democratic presidents pass mass changes via the NEA or executive orders, supported by a compliant media. Because the arguments Ilya is making is for the courts to sway their rulings based on "popularity" not based on the will of the people.

[Armchair Lawyer]

I need to reemphasize this. Laws exist to protect minorities. They exist to protect those who have unpopular opinions. Who aren't supported by the mass media. Who are unsupported by the mass opinion. And the courts exist to protect these people. This suggestion that the court should "flex" these laws to ignore those protections and go along with popular opinion instead is offensive and undermines the republic as a whole.

[James Pollock]

"I need to reemphasize this. Laws exist to protect minorities."

Laws ALSO exist to protect majorities.

[David Nieporent]

Mike Lee's bill is an excellent one. But Democrats Won't Vote For It. Why?

Perhaps because it approved of this retarded wall declaration? Yes, the rest of the bill was good, curtailing the president's ability to declare emergencies in the future. But it did so with the tradeoff of letting this one stand, even though there's no reason not to do both.

[bernard11]

Common sense won't win you many followers, David.

[iowantwo]

You can't make laws retroactive can you?

[James Pollock]

You can, actually, though doing so is fairly complicated and has many limits. For example, some of the states that are decriminalizing MJ are making past convictions voidable.

[Brett Bellmore]

You can make laws retroactive if the retroactivity doesn't involve any "punishment"; (And the courts are reluctant to admit that anything that isn't a criminal sentence could be a punishment.)

You can always retroactively lift a punishment.

[jph12]

"But it did so with the tradeoff of letting this one stand, even though there's no reason not to do both."

You mean because it doesn't distinguish between Trump's stupid wall emergency and all of the other stupid emergencies still in place? That's not a very good reason. And especially now that they've passed a bill declaring that Trump's stupid wall emergency isn't an emergency, it's really not an excuse at all.

[MKE]

Funny thing about bills, until they're signed by the President or Congress overrides a veto, they're not really anything are they?

[jph12]

That's not really funny at all. It was a little funny when School House Rock put out the cartoon explaining how a bill becomes a law, but that was because of the cartoon, not the process. But thank you for sharing your vast knowledge of the inner workings of our government.

[MKE]

Not sure I follow you but I'll take your word on the cartoons because I'm sure you're an expert. Are there any other animated shows that bolster your credentials?

[David Nieporent]

That's not really funny at all. It was a little funny when School House Rock put out the cartoon explaining how a bill becomes a law, but that was because of the cartoon, not the process.

Well, it was a lot funner when the Simpsons put out the cartoon explaining how a bill becomes a law.

[MKE]

I think I'm starting to understand why liberals are so idiotic.

[Armchair Lawyer]

1. "It approved this wall declaration"

It does not "approve" it. Feel free to cite the text and show where it does. There is no trade off.

Moreover it DOES end this (and all current emergencies) after a reasonable period of time.

2. The bill is good. There's no reason not to pass it, even if it doesn't immediately end the current emergency. There's no reason not to pass a bill that does one good thing, a good thing you agree with, even if it doesn't do two things you agree with.

[David Nieporent]

It does not "approve" it. Feel free to cite the text and show where it does. There is no trade off.

This is sophistry. True, it doesn't say, "Yay, wall!" But the bill was offered as a substitute for, not a complement to, the disapproval vote. And although it would provide that emergencies automatically end after 30 days unless approved by Congress, that limitation would not apply to actions underway as a result of an existing emergency order. IOW, it grandfathered in Trump's wall actions.

[jph12]

The sophistry is in pretending that a bill that treats Trump's stupid wall emergency in exactly the same way as every other emergency that's still on the books, including automatically expiring within a year unless extended with Congress's participation, somehow counts as an approval of the wall emergency.

[jst1]

" But the vote might nonetheless have more than just symbolic significance, because it could potentially impact the resolution of the many lawsuits challenging the legality of Trump's declaration."

It would be interesting to see what other legal challenges to a President's veto are helped by the fact that it could not be overridden.

[dwshelf]

This was not a vote saying that the declaration was illegal, despite Somin's claim.

Most Republicans who voted in favor would agree that the declaration was legal, but inappropriate, perhaps abusive of the discretion granted to the president. And they would like to find a way to stop not Trump in particular, but presidents in general. This vote, unfortunately, won't do either.

[JesseAz]

Overwhelming Ilya? Wouldnt that word be saved for at least a veto proof majority?

[James Pollock]

There's no such thing as a veto-proof majority. The vote could be 100-0, and the President can still veto.

I think in this context, "overwhelming" means "higher than expected", or maybe even "much higher than expected", which is accurate.

[Brett Bellmore]

You're not really that stupid, are you? "Veto proof" means enough votes to override a veto. It always has meant that.

[Armchair Lawyer]

Pollock has a habit of being deliberately stupid or deliberately misunderstanding. It's a trollish behavior.

[James Pollock]

It takes cojones to whine about trolling, while trolling, jack.

[Alpheus W Drinkwater]

No it doesn't, just lack of self-awareness.

[James Pollock]

"You're not really that stupid, are you?"

No. Are you?

"'Veto proof' means enough votes to override a veto."

And how many is that, genius? You can't override a veto before there is one.

[MKE]

By way of explanation super-genius, veto-proof is just shorthand expression meaning enough potential votes in each house to override any possible veto. Two-thirds, just to save you the trouble of consulting your "constitution for dummies."

[Kazinski]

Veto proof? It's not even filibuster proof.

[Stephen Lathrop]

As a practical matter, just looking at what happened, it seems to have been filibuster proof this time.

[Brett Bellmore]

As a procedural matter, this particular sort of vote is filbuster proof even if not one Senator wants the override, because the NEA states that, once one chamber has voted to override, the other chamber MUST hold a vote.

[ReaderY]

The statute has special rules to expedite an override resolution. The normal procedural rules don't apply. That's why it wasn't possible to filibuster this one.

[iowantwo]

Near as I can tell from listening to congress critters, securing the border is impossible. They all say the same thing. "we all want a secure border, the walls not the way" . So for the last 20 years they have tried everything and failed. It is an impossible task

[James Pollock]

There hasn't been a sincere effort to secure the border since (at least) Reagan.

You know this is true because Congress capped the number of people who can hear deportation cases, at a number that is obviously not sufficient to meet the need.
This is so despite both major parties having periods of control of both houses of Congress and the White House.
President Obama went to Congress and specifically asked for authority to hire more hearings officers, to hold more deportation hearings, and the Congress didn't even both to consider the request. Republican Congresscritters considered opposing anything Obama wanted as a higher priority than taking steps to improve this problem. Many of them are still Congresscritters, so the voters at home must have agreed with that approach.
Building a 30-foot wall is grossly inadequate in a world in which airliners fly at 30 thousand feet.

[Brett Bellmore]

JUST building a 30-foot all would be grossly inadequate in a world in which airliners fly at 30 thousand feet. That doesn't mean it isn't a reasonable part of a comprehensive solution; Just dealing with airliners would be grossly inadequate, too, in a world where people can walk on the ground.

But, yes, you've hit the nail on the head: Congress doesn't WANT the border secured. It's just that the Republicans can't, politically, survive saying so. It's only recently that even the Democrats could survive being honest about it.

The real crisis here isn't on the border, it's a crisis of democracy no longer functioning on a growing list of topics. Illegal immigration is just the most glaring of those topics.

[James Pollock]

The problem is that illegal immigration is a complex problem without easy solutions, which is the same as being insoluble to people who want their government policies to fit on a bumper sticker.

You want to eliminate illegal immigration? Here's a way: Involve the government in every financial transaction, specifically including cash transactions, over $10. With no way to effectively pay illegals for their labor, the call to flee to the US in search of paying work evaporates and takes most of the illegal immigrants with it. Sure, the cure is way worse than the disease. But it would work. Building a wall on 10% of the border won't. It didn't work for the Chinese, and they built on more than 10%, and it didn't work for the East Germans (of course, they were trying to solve a slightly different problem), and it isn't working for the South Koreans, and they're willing to shoot at border crossers without asking questions.

[James Pollock]

In short, if we're going to maintain a system that doesn't work, my preference is that we keep the cheapest one that doesn't work, instead of paying more for a different system that doesn't work.

[Brett Bellmore]

Of course there's no easy solutions. But there aren't any solutions at all, if your country has an entrenched political class who don't want a problem solved. And that's where we are now, in the US.

I've got a better solution: A bounty on people who employ illegal aliens, payable to the first person to report them. Funded by a fine on the employer, and if you're an illegal alien, you can collect and get another 6 months without being deported in which you can look for more employers to turn in.

Potential employers of illegal aliens will suddenly decide hiring them is just too risky.

But, you can't implement something like that when the majority in Congress want illegal immigration.

[James Pollock]

"I've got a better solution: A bounty on people who employ illegal aliens, payable to the first person to report them."

I hereby report every employer in the United States. Pay me when you track them all down.

[Yogis_dad]

To end illegal immigration, end welfare, mandatory foreign language instruction in public schools, and mandatory treatment of patients in emergency rooms without the means to pay. Make e-Verify mandatory, and do not permit persons without US birth certificates of lawful immigration status to work, drive, vote, contribute to political campaigns, bring lawsuits, or inhabit public housing. All these measures comport with the Constitution as adopted.

[James Pollock]

Your problem, Boo-Boo, is finding a way to ENFORCE all your new (old) laws.

[Stephen Lathrop]

Yogis_dad, that bit about the emergency rooms? That would be pure political gold for Democrats. The only reason there isn't already overwhelming, nation-wide support for single payer health care is that all across the South poor people's medical care has been 100% socialized, via the emergency room. Care seekers in many locations don't even get bills, because the cost of billing them would be pure waste, yielding nothing.

Southern politicians understand that their poor constituents are getting the cheapest medical care they will ever be able to afford, and oppose any change that would saddle them with any costs at all, however trivial. That's why those politicians won't vote for single payer. America's health care revolution starts the day you take the emergency room away from the indigent South.

[David Nieporent]

it isn't working for the South Koreans, and they're willing to shoot at border crossers without asking questions.

I am assuming that this was supposed to be North Koreans.

[MKE]

Hard to know where to begin. The process, as prescribed by statute, fails to overturn the declaration and this somehow should influence a court to issue a ruling overturning that which specifically dictated statutory process failed to do? I'm kind of embarrassed for the author of this article.

[James Pollock]

" I'm kind of embarrassed for the author of this article."

For understanding how law works better than you do?

[MKE]

No, for letting petty biases cloud his (I assume) better judgment and prompt dribble like this posting. After a veto the process actually directed by statute to oppose a declaration will have failed. To suggest that, after that statutory process has failed a court should be influenced against the declaration is an absurd argument. But, since President Trump has obviously acted in accordance with all statutes and the constitution, I guess absurdity is all opponents have left.

[James Pollock]

"since President Trump has obviously acted in accordance with all statutes and the constitution,"

Well, sure, if you start out by assuming your conclusion is true, you'll come to the result that your conclusion is true.
But that's not how courts work.

If, as contended, that the statute at issue is invalid because it transfers a Constitutional power of the Congress to the President, then it makes zero difference whether the President was willing to take on the power.

You're choosing the frame the issue in a way that leads to your desired result. Nothing surprising about that. But the alternative framing you're refusing to even contemplate is also valid, and the court will take it into account, and if they don't, then the appeals court will. I don't know whether it will be the determining consideration, but not, it isn't irrelevant twaddle, except to dimwits who fail to understand constitutional law.

[Brett Bellmore]

The NEA has, regrettably, been upheld, and he's complying with it. So, yeah, from a legal realist standpoint he's obviously acted in accordance with all statutes and "the Constitution" as interpreted by the courts.

I agree that the NEA should never have been upheld, but that's not a judgment the Supreme court is likely to reverse.

[MKE]

Clever, if just being a sarcastic ass wins an argument, I concede. But despite your obvious expert knowledge on how the courts and constitution work, ultimately this nuisance "resistance" litigation will fail in a sober review, probably on standing grounds for that idiotic CA lawsuit.

[MKE]

Above is directed to Jackson Pollock above, if there is any confusion.

[James Pollock]

There's plenty of confusion, but if you go away, it all leaves with you.

[MKE]

Not really all that cleverly sarcastic a response but I'm sure you're trying. And, I'm also sure you felt just as smugly confident on the outcome of the travel ban case, and probably Janus and Citizens United, and were proven just as ignorantly misguided on those cases also.

[James Pollock]

"Not really all that cleverly sarcastic a response but I'm sure you're trying"

And you're VERY trying.

" And, I'm also sure..."

Well, as long as you can assume things, they must be true, right?

[MKE]

Not even as good as your first effort. I am really looking forward to the feeling of schadenfreude when all this litigation/opposition fails miserably. Will you post some more comments when that happens so I can ridicule you some more?

[Turtle Dove]

Just a thought, but if declaring an emergency isn't a delegated power, there might be no Chadha bar to an effective Joint Resolution. Some of the older emergency powers involved military emergencies, seemingly core Article II territory. So the 1976 Act perhaps just cabins the effectiveness of certain powers (e.g., ready reserve callup, military construction budget) that have been explicitly made available during times of emergency, without granting the core power of declaring the emergency. And if I give Blackacre to X on the condition that it's raining, the dispute over whether or not its raining doesn't implicate the power to conditionally give the estate to X. (I don't need to undo the gift with full bicameralism, presentment, and what have you.)

Again, just a thought. Top of the head. End of the day.

[James Pollock]

Reps and Sens who voted to preserve the emergency declaration the first time around might yet switch sides in an attempt to override the veto.

[Brett Bellmore]

More likely to go the other way, you know.

[James Pollock]

"More likely"? I'll concede "also possible".

[Brett Bellmore]

Yeah, I guess you haven't got a long history of following politics, then?

[James Pollock]

Yeah, I guess you prefer your imagination to reality, then?

[Brett Bellmore]

How many times, exactly, (or even roughly) are you aware of, where a bill passed by too few votes to override a veto, and then went on to pick up more votes and pass on the override attempt? I've never heard of it happening.

But, go ahead, surprise me. Maybe it's frequent and I just haven't been paying attention.

[James Pollock]

" I've never heard of it happening."

Well, then I guess it can't happen, then.

[Brett Bellmore]

No, of course it "can" happen. Which is why I said that it was "more likely" to go the other way, rather than saying it was predestined from the start.

[James Pollock]

Don't back away from a win.

You offered as proof that you never heard of it happening, ergo, it can't happen.

[MKE]

Do you really believe this pollock or just feeling your beer?

[Kazinski]

I support Mike Lee's bill to sharply restrict National Emergencies and limit them to 30 days unless Congress acts. And I'm not really a supporter of the wall in the first place, I think expansion of everify and ruinous fines against employers for non-compliance would be much more effective and cheaper.

But I think the courts shouldn't intervene in this dispute, congress gave the president this authority, and they don't have the votes to revoke it. It does lasting damage to the courts and our political system for the courts to stop enforcing the law and enforcing Trump Rules instead.

The voters were throwing a tantrum when they elected Trump, me included. It's just confirming Trump was right that the system is rigged when the court uses a special rulebook for Trump.

[Eddy]

"...I think expansion of everify and ruinous fines against employers for non-compliance would be much more effective and cheaper."

This is a point the build-bridges-not-walls crowd needs to consider. Until such time as Congress decides to legalize everyone who crosses the border, there will be some method or other to catch illegal crossers. If they're not caught at the border, then why not a national ID system to make sure that everyone who applies for a job is qualified to work? In fact, from my limited reading of the political news, this everify stuff is sold as a reasonable bipartisan compromise.

[Stephen Lathrop]

Eddy, problem with that, from the Trump point of view, is that bona fide asylum seekers end up qualified to work. And while they reside here, working, they have babies, who are American citizens. That won't do.

[Brett Bellmore]

The Trump point of view, with considerable legal backing, is that virtually all of these "asylum seekers" are NOT bona fide. They're just illegal immigrants who've been coached to apply for asylum if they get caught.

Now, you might think this isn't really the case, but it still remains "the Trump point of view".

[James Pollock]

"The Trump point of view, with considerable legal backing, is that virtually all of these "asylum seekers" are NOT bona fide."

OK. But they STILL get due process to try to make their case.
The prosecutors view is that ALL the people they charge with crimes are guilty, and that's why they were charged with crimes. But we still go through with trials, to try and weed out the ones who aren't actually guilty.

[Brett Bellmore]

Absolutely! The real question is whether due process has to involve permitting entry into the US. What Trump is pushing for is for them to be required to apply from Mexico.

Since they're not claiming asylum FROM Mexico, that shouldn't be a problem. That, of course, is also why the applications aren't bona fide: First country of asylum rule.

By the time you've walked to the US, you will only have a valid claim for asylum in the US if you're claiming asylum from Mexico or Canada. Which is pretty rare.

[James Pollock]

" What Trump is pushing for is for them to be required to apply from Mexico."

Sure. I bet prosecutors would love a trial system where the defendant wasn't allowed to be present in court, too! Them and their lawyers just slow down the proceedings...

[Brett Bellmore]

It's not a trial, and asylum hearings can be conducted at embassies.

[James Pollock]

You've skipped over the question of whether the process that is provided is the process that is due. They're guaranteed due process, and it's fair to question whether a trial that you aren't even present for is appropriate.

[Krayt]

Earlier today, the Senate overwhelmingly voted to reject President Trump's "national emergency" declaration

Technically it fell one vote shy of "overwhelming".

[Real Books]

So it was merely "whelming"?

[Brett Bellmore]

Pretty much. It failed to overwhelm anything.

Trivia: "Overwhelm" and "whelm" mean the same thing, just like "inflammable" and "flammable".

[Eddy]

Just like there was a mercifully brief period when "awesome" and "bad" meant the same thing.

[James Pollock]

"Technically it fell one vote shy of 'overwhelming'"

Your math is off. It would need 67 votes to be "overwhelming".

[ReaderY]

Judges are human, and how strong the facts are likely matter.

But legally, I don't think it makes a difference. I think the legal merits should focus on whether the statute limits the President's power to define "emergency" and whether this falls within statutory limits. If there are no relevant statutory limits on discretion, constitutional questions would arise, like whether the statute represents an unconstitutionally unfettered delegation of the spending power.

I don't think the fact that an unsuccessful override attempt was made, or that the vote count was majority but not 2/3, matters legally. If it is a permissible use and the override procedure failed, it stands. It doesn't matter, from a strictly legal perspective, how close it came to succeeding.

[James Pollock]

"I don't think the fact that an unsuccessful override attempt was made, or that the vote count was majority but not 2/3, matters legally. If it is a permissible use and the override procedure failed, it stands. It doesn't matter, from a strictly legal perspective, how close it came to succeeding."

Depends on whether you're looking at this as a statutory interpretation case, or a separation-of-powers case. If it's the latter, then the Congress can't write a statute that transfers its power to the President, and an attempt to do so is void. If the statute is void, it doesn't matter what it says.

[Brett Bellmore]

Yeah, and I'd be raising a toast if the Supreme court up and decided to revive non-delegation doctrine.

But I don't see that happening, and it would be pretty uppity of a lower court to try doing that for them.

[James Pollock]

Given that you didn't understand the article, why are you commenting?

[DeleteGrossLiberals]

Nonsense. No liberals would vote against it because of the "precedent." You, and they, oppose it because you don't want a wall, or any immigration rules or enforcement at all.

[James Pollock]

Is there any reason to take you seriously?

[DeleteGrossLiberals]

Because what I said is true?

[James Pollock]

So, no? Filing it accordingly.

[kramartini]

Perhaps Ilya should review his School House Rock. As any viewer of Saturday morning cartoons knows, a bill that is vetoed is not a law. (It is just a sad little guy with no power.)

And while the 59-41 vote might give courts a sense of what the current Senate thinks about whether the Emergency Declaration is valid, it provides no sense about the original public meaning of the law when passed...

[James Pollock]

"Perhaps Ilya should review his School House Rock. As any viewer of Saturday morning cartoons knows, a bill that is vetoed is not a law."

Perhaps you should obtain more knowledge of law that what we hand out to grade-schoolers before wading into a legal question.

Underlying the question of whether the President followed the law in declaring the emergency and using the powers granted by that declaration to claim the authority to act without Congressional approval, is the question of whether Congress can, legally, EVER transfer this power to the President.

It's not your fault. ABC didn't play the "three-ring circus" Schoolhouse Rock, because of government objection.
https://www.youtube.com/watch?v=tEPd98CbbMk

[MKE]

How is it without Congressional approval nimrod if the declaration is made pursuant to the NEA? The NEA was passed by Congress since you seem confused about this.

[Yogis_dad]

For a court to rely on arguments used in a statute that did not become law, even because it was vetoed, is just more proof that the republic has cast loose its moorings from the Constitution and become a nation of men, not law. It would make just as much sense for a judge to consider the text of a Kerouac novel or the United Nations Charter.

[James Pollock]

"For a court to rely on arguments used in a statute that did not become law, even because it was vetoed, is just more proof that the republic has cast loose its moorings from the Constitution"

Depends on what the question is that is being considered. If you see it as a power-struggle between branches of the federal government, well... the Constitution set things up that way, on purpose, and that's the Constitution working as it was designed.

This type of conflict is why the court disallows "friendly" transfers of Constitutional power, even if passed properly at the time.

[MKE]

No you clown, this is why courts don't get involved in political questions.

[Longtobefree]

The clear implication is that somehow Nancy Pelosi controls the senate - - - - - -

[DeleteGrossLiberals]

None of these "asylum seekers" are legitimate. They're basically impoverished third worlders who want our money. Period, end of game.

[JustAnotherBizLawyer]

Since this legislation DID NOT seek to modify the National Emergencies Act or other authorizing legislation granting the President the authority to do exactly what he has done, THE LEGISLATION AT HAND MERELY SOUGHT TO SUBSTITUTE THE OPINION OF THE DEMOCRATS IN CONGRESS ABOUT THE BORDER EMERGENCY FOR THE PRESIDENTS OPINION. BUT the national emergencies act gives the PRESIDENT and NOT CONGRESS the sole authority to determine when a national emergency exists.

So this legislation is merely the expression of a democrat party POLITICAL opinion and says NOTHING about the propriety or constitutionality of the Presidents declaration. Attorney General William Barr gave the emergency declaration a very strong defense today as to both its lawful authority and constitutionality.

Somin is just projecting his personal biases into his legal analyses yet again.

[Sarcastr0]

the national emergencies act gives the PRESIDENT and NOT CONGRESS the sole authority to determine when a national emergency exists.

...Are you actually a lawyer?

[JustAnotherBizLawyer]

Can you restate in an articulable and intelligent form that is relevant to my post, and posits a real inquiry as opposed to an ad hominem attack disguised as a question?

[Sarcastr0]

Congress can revise an act at any time, so the President never had sole authority.

Additionally, the act contains language other than 'sole authority' which would indicate an intent to constrain that authority beyond what you think.

Add in the legislative history indicating no intent for sole authority, plus delegation doctrine issues, and your authoritarian scenario is so very facile I am amazed.

[JustAnotherBizLawyer]

>>>>>>
Congress can revise an act at any time, so the President never had sole authority.

Additionally, the act contains language other than 'sole authority' which would indicate an intent to constrain that authority beyond what you think.

[JustAnotherBizLawyer]

>>>>>>
Add in the legislative history indicating no intent for sole authority, plus delegation doctrine issues, and your authoritarian scenario is so very facile I am amazed.

[JustAnotherBizLawyer]

I've tried to make a full reply twice but the website software keeps eating that reply resulting in the garbage below. Sorry

[JustAnotherBizLawyer]

___________
Add in the legislative history indicating no intent for sole authority, plus delegation doctrine issues, and your authoritarian scenario is so very facile I am amazed.
___________

Again your opinion, and we all know what Justice Scalia thought about legislative intent. The simple fact that you keep ignoring is that the text of the Statute empowers the President to declare a National Emergency under the National Emergencies Act. And that Act does NOT provide Congress any way to offer a different opinion except by a new law passed by Congress and NOT VETOED by the President.

In this case Congress didn't even try to pass an amendment to the National Emergencies Act strongly indicating that Congress does not wish to change the powers granted to the President under that Act. Instead the democrats in Congress were simply trying to substitute their POLITICAL OPINION for the considered and lawful under the Act opinion of the President in this specific finding by the President of a National Emergency at the border.

The fact you are so easily amazed is just one more irrelevancy in your reply.

[JustAnotherBizLawyer]

___________
Congress can revise an act at any time, so the President never had sole authority.
___________

WRONG. You need to read the constitution again on how legislation becomes law. Congress can NOT revise anything or pass any law except with the President NOT VETOING the legislation or Congress having the 2/3rds necessary to override a Veto. So unless and until Congress passes something that actually becomes law, the President retains sole authority under the National Emergencies Act.

[David Nieporent]

You need to look up the meaning of "sole."

[James Pollock]

" BUT the national emergencies act gives the PRESIDENT and NOT CONGRESS the sole authority to determine when a national emergency exists."

OK. Is it within Constitutional law for Congress to transfer a Constitutional power of Congress to the President? Even if it passes both houses and the President signs it? Because if it isn't, it doesn't matter what that statute says, it's void.

[James Pollock]

To frame that as a business law question, it's like an otherwise valid contract that's void for being contrary to public purpose. Arguing that such a contract should be enforced as written because both parties entered it willingly is dumb because there's no contract to enforce, it was void ab initio.

[MKE]

Nice try pollock, try looking up political questions and standing in the same golden book of law you looked up ab initio.

[JustAnotherBizLawyer]

A good question but it does assume that Congress has the sole constitutional authority to deal with national emergencies. There is plenty of room in the constitution for the President to have authority in the area of national emergencies to act without Congress. The duty to repel invasions and his Commander in Chief powers are certainly two. The fact that the President is acting in this case BOTH under his own constitutional authority AND under the Statutory Authority of Congress follows justice Jackson's strongest position for the President's authority.

The only thing Congress couldn't delegate to the President for sure is something that the constitution expressly reserves solely to Congress. There isn't anything in the Constitution about exclusively reserving to the Congress the right to declare national emergencies dealing with invasions and/or other problems in foreign lands (which have been done by Presidents many times). Much less dealing with those same kind of national emergencies and/or invasions in our own country.

If the constitution forbids the delegation of matters to the executive that are NOT expressly reserved to Congress in the constitution, then virtually the entire administrative state Congress has constructed would be unconstitutional.

[Rev. Arthur L. Kirkland]

It is not being done on purpose. It's natural. Evolution. Progress.

It also has a nice ring to it. So . . .

Carry on, clingers. Until you are replaced, that is.

[DeleteGrossLiberals]

It's natural for people to allow themselves to be conquered?

[Brett Bellmore]

First the incoming horde allow them to take control of the government.

Then, having used them to take control of the government, the horde make things awful enough to provide an excuse to impose dictatorial rule.

They're also available as janissaries, if needed. Having troops that have no allegiance to the citizenry can be handy.

[DeleteGrossLiberals]

People like him fall into two categories. The first are those that don't believe in the realities of race, ethnicity and culture and thus think they'll all assimilate very quickly. They think America is just an idea. The second KNOW that they won't, and think their gated communities will be enough to keep their wealth and power secure.

[Brett Bellmore]

Exactly. If the GOP voters weren't aligned with Trump, they'd be utterly fearless about crossing him, indeed, they'd probably have already gotten together with the Democrats to impeach him. They hate his guts, since he was a non-establishment candidate who was never supposed to win.

[Rev. Arthur L. Kirkland]

Right-wingers have been fighting progress throughout our lifetimes. They lose because their thinking is stale and substandard and because America is great, not because they don't try to turn America back toward illusory good old days.

[Rev. Arthur L. Kirkland]

The first are those that don't believe in the realities of race, ethnicity and culture and thus think they'll all assimilate very quickly. They think America is just an idea. The second KNOW that they won't, and think their gated communities will be enough to keep their wealth and power secure.

America has been strong enough to survive exposure to egg rolls, linguini, collard greens, sushi, Jameson, burritos, pierogis, bagels, lutefisk, pad thai, and the Friday fish fry. I expect us to withstand the current cultural challenges.

I blame my education and faith. Have you no faith, DGL?

[Rev. Arthur L. Kirkland]

First the incoming horde allow them to take control of the government.

What is this?

Which horde? Which government?

Or it is just copy-and-paste from the New Zealand manifesto?

[James Pollock]

" they'd probably have already gotten together with the Democrats to impeach him."

Why on EARTH would Democrats conspire to impeach him? He'd just be replaced by another Republican, and the next might have the capability of being actually effective. D's would rather keep the inept buffoon in place... until January 2021.

[James Pollock]

You forgot about green beer, Rev, and with St. Patrick's day just around the corner.

[MKE]

Don't forget democrat anti-Semites. Oh and democrat socialists. We "right-wingers" also fight against democrat anti-Semites and democrat socialists. Before that we fought against democrat imposed Jim Crow/segregation and before that there was democrat imposed slavery. I know there is a common denominator in there somewhere.