Today
President Donald J. Trump made official what he had “teased up”
for weeks. Speaking in the Rose Garden this morning, he declared a national emergency on the US-Mexican border. In so doing,
he used his authority to redirect moneys the government had not
already spent. Several reports suggest Trump gained eight billion dollars for the wall project.
But the President also signed the compromise budget bill that
averts a repeat of the partial shutdown of government. So the
National Parks will stay open, and so will the FAA. Yet many
conservative commentators warn that the bill has many “poison pills” that could nullify even a
national emergency. Or could they?
Grounds for a national emergency
President Trump, to justify his national emergency declaration,
said, quite simply, “We’re seeing an invasion of our country.”
He refers to at least two massive caravans of migrants. Many of these
migrants have tried to storm the border in recent weeks. Trump also
discussed the victims of crimes that illegal immigrants have
committed against American citizens. In fact he named several who
fell victim to murderous attacks since he took office.
Trump has sounded these themes often, so what he said this morning
should surprise no one. The only surprise might have been to learn
that he was not bluffing.
The buzz on Twitter and in Internet newsletters has continued
without letup since then. Naturally, half the comments approve of his
national emergency; the other half do not.
Is a national emergency a valid exercise of
executive power?
Article IV Section 4 of the Constitution specifically enjoins the federal government to:
“Guarantee to every State of the Union a republican form of
government,”
Protect the States against invasion, and
Protect against “domestic violence” when a State
legislature asks for such protection. (A State governor may so
request if the legislature cannot assemble.)
Trump, therefore, knew what he was saying when he used the word invasion. The Constitution
does not define that word. Traditionally, invasion means a hostile army walking in. But invasion can also mean a crowd of people, even in civilian clothes, trying to
storm a border. When at any time anyone tries to enter a
territory without invitation or permission, that constitutes an
invasion.
Judicial precedent
Ranking Democratic Party
Congressional leaders swiftly declared their intent to sue Trump to
nullify the national emergency. Trump anticipated this in his Rose
Garden speech. He also reminded his listeners that “transgender
activists” sued to stop the military from excluding transgender
recruits. They “forum shopped” and filed in the Ninth Judicial
Circuit. Which circuit has notoriously seen more of its decisions
overturned than has any other Circuit. This proved no exception. The
Supreme Court refused to enjoin the military from its ban policy. Usually when a judge
refuses to enjoin a party temporarily, said judge deems the other
party unlikely to win a permanent injunction.
So Trump already expects the
Democrats to sue him in some district court in the Ninth Circuit. He
also expects the Supreme Court to uphold him in the end.
The Youngstown precedent
Rep. Adam Schiff (D-Calif.)
mentioned the so-called Youngstown
Decision of 1952 as a precedent against a national emergency.
President Harry S. Truman, in that year, seized several steel
companies to try to keep them working during a general steel strike.
The Supreme Court rebuked him and nullified those orders. (Youngstown
Sheet & Tube Co. v. Sawyer.)
Justice Hugo Black, writing
for the majority, said:
There is no statute that expressly authorizes the
President to take possession of property as he did here. Nor is there
any act of Congress…from which such a power can be fairly implied.
But President Trump does not propose to seize a business, as
Truman did. Nor is such seizure at issue. What is at issue is
Presidential discretion in spending funds Congress has already
appropriated.
In any event, the National Emergencies Act of 1976 would be at work here. This Act still lets a President
declare a national emergency, and re-declare it, with due notice to
Congress. In fact, thirty-one national emergencies are now in force and effect! Presidents have been re-declaring these
routinely for decades.
Bobby Eberle, writing at GOPUSA, warns against provisions in the bill that, he believes, no President
should sign. In fact, Mr.
Eberle describes two kinds of poison pill, that are not equally poisonous. One type concerns certain agencies of the government that
Mr. Eberle believes serve no useful purpose. Or worse, these are
inimical to liberty. Specifically, he cites the:
National Endowment for the
Arts,
Internal Revenue Service,
Environmental Protection
Agency, and
Department of Commerce.
But the President has a problem
Mr. Eberle and others should consider. Even a national emergency does
not empower a President to de-fund any agency at his own choice. This
is not a matter of finesse in negotiations. This is a matter of refusal to negotiate
and holding other agencies hostile to these and other similar
agencies. Would Mr. Eberle see the FAA shut down, and flights
grounded for lack of air traffic control? Ideally, someone should
turn air traffic control over to a private company with its own
budget and fee structure. Aviation Radio, Incorporated (Arinc) first
handled air traffic control before the FAA took that function away
from them. But for Arinc or any other private air-traffic control
company to take over that function, would take time. It would in fact
take too much time, time the country cannot spare with grounded
flights.
Poison pills relevant to immigration
Mr. Eberle is on more solid
ground when describing another kind of poison pill. According to him,
this bill:
Sets direct limits on
construction at the border,
Further restricts the
government’s authority to deport someone, and even (so he says)
Perversely incentivizes
unscrupulous people to traffic in children.
No reliable witness will
corroborate Mr. Eberle on the child trafficking charge. But as to the
construction limitation, The Washington Examiner had a few
more helpful details.
Construction limits
The President, under this bill,
may build any physical barrier of a type already standing on the
border. This is a steel slat fence that, Trump believes, should be
formidable enough.
The President may not build any
fence in five specific wildlife areas. This includes the National
Butterfly Center. The center directors earlier sued to stop the wall
completely. A court refused to enjoin the project. The court held
that the plaintiffs had never shown that any federal construction
crews had actually trespassed on their refuge.
Finally, the President must
“confer and seek…mutual agreement” (i.e., negotiate) with the
city fathers of five Texas cities. These are Roma, Rio Grande City,
Escobares, La Grulia, and Salineo. But Trump should have an easier
time negotiating with these city councils than he ever could have,
say, with the city fathers of Austin or San Antonio. And he certainly
can do better in these five cities than with House and Senate
Democrats!
National emergency for gun control?
Even before Trump declared his
national emergency, Speaker Nancy Pelosi threatened that a Democratic President might declare a national emergency “to deal with gun
violence.” When she said
that, she raised the political stakes tenfold. Now everyone who loves
freedom has heard: let another Democrat into the White
House, and the weapons collecting will begin. You heard it, from the mare’s mouth, so you have no
excuse for failing to act.
Washington
State passed several infringements on the right of the people to keep
and bear arms. And several sheriffs refuse
to enforce these infringements.
They find them in violation of the federal and State constitutions. Can anyone reasonably expect these sheriffs to enforce
an executive order to call in all guns?
The domestic violence question
In any case, the Speaker seems
to suggest a failure of the
federal government to protect against domestic violence. The
occasional mass shooting in a school, she no doubt thinks,
constitutes domestic violence. CNAV would remind the Speaker: the legislature of any State must
apply to the federal government before the federal government has any,
repeat any, authority
to act against domestic violence. No State legislature has ever so applied. Even the Florida legislature did not apply for federal
intervention after the Parkland school shooting. Nor did the
Connecticut legislature so apply after the Newtown (“Sandy Hook”)
shooting. (And this doesn’t even address whether those shootings
might have been false-flag pseudo-operations. Might each
have involved
a provocation of domestic violence to excuse weapons collecting as a measure to quell it?)
Conclusion
In short, the President acted
properly today. We do have a national emergency, and one that goes even beyond what the
President said. Senator Charles M. Schumer (D-N.Y.) is on record
telling a sympathetic audience that “we need the votes” of
illegal immigrants. Obviously they want something, and they know the
votes of bona fide U.S. citizens won’t get it for them.
But Senator Schumer didn’t
always feel that way! Or at least, he said he didn’t feel that way. Watch what he said ten years ago
on this very subject.
Today he had the chance to act,
and acted in opposition to his position of ten years ago. That’s why we have a national emergency on our southern border. And that’s
why Donald Trump had to act as he did today.
Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
Leave a Reply
You must be logged in to post a comment.