Pres. Trump declares fakeNational Emergency, triggering possible fake Constitutional Crisis
By: David Herron
Tags: Trump Administration, Trump, Politics, Border Wall, National Security

I am not a Trumpite, instead I’m extremely worried about President Trump and all the damage his administration is doing to the USA. A defining issue of the Trump Presidency is this Border Wall crisis, with Trump repeatedly claiming there is an “invasion” of illegal aliens and illegal drugs flowing through an open border. The facts tell a different story, that most of the drugs and undocumented immigrants are entering through normal ports of entry, and that most undocumented immigrants are simply overstaying visa’s. Further the “illegal” traffic at the border between ports of entry has fallen dramatically over the years. Hence, the crisis is a made up phony crisis. But does that mean we should necessarily be alarmed at Pres. Trump declaring a National Emergency?

That is — today is Feb. 15, 2019, and yesterday Pres. Trump declared a National Emergency in order to arrange funding for the “Border Wall” between the USA and Mexico. This is the same Border Wall where he promised during the election that Mexico would foot the bill. Because he was unable to strong-arm Congress into including Border Wall funding in a continuing government funding measure, he drummed up a crisis, including the longest Government Shutdown in history, over funds for The Wall. Yesterday, Pres. Trump signed the government funding measure, and then immediately declared a National Emergency.

Given the existence of the National Emergencies Act, so long as Pres. Trump obeys that law then his invoking of a National Emergency is not a problem. The law spells out the process for a President to declare an Emergency, and spells out what Congress can do in response. So long as everyone follows the procedures it’ll be all fine.

A couple weeks ago I wrote at length about my worry that President Trump would invoke a fake National Emergency similarly to when Hitler invoked a fake Emergency to institute all kinds of legal changes that led to the dictatorial powers of the Nazi Party in Germany. There are lots of reasons to worry over that scenario, and lots of wise well educated legal/political scholars share that worry. It’s all spelled out in the previous blog post. And what’s also spelled out is the reality of the National Emergencies Act, and that the USA is currently under 28 existing National Emergencies without it being any kind of Constitutional Crisis.

Yet in this case, as soon as President Trump declared the Emergency, a chorus of not only Democratic Party leaders but Republican Party leaders rose up to not only say this was wrong, but that the declaration of a National Emergency was a Constitutional Crisis, and we should all act very scared, and so on.

The question before us is whether Pres. Trump violated the law, or as Sen. Marco Rubio suggests whether he violated the Constitution, by declaring a National Emergency over a fake crisis.

The second question is, what is the rational response? Is the correct response to jump up and down screaming Constitutional Crisis? What if this is not an actual Constitutional Crisis? It’s one thing to complain about Trump’s fake National Emergency, but yet another to layer over that yet another fake emergency.

Is there a real emergency at the US-Mexico border?

All kinds of evidence says there is no emergency at the border. Yes there is illegal drugs and undocumented immigrants entering the USA. The evidence says this is not entering the USA through open areas between the ports of entry, but instead through the ports of entry. The proper response then is to beef up enforcement at ports of entry, such as increasing the number of customs agents, increasing the number of immigration courts, etc. For the areas between ports of entry, computerized scanning systems are being suggested as a less expensive alternative that will serve the same purpose.

Pres. Trump is making all kinds of crazy claims — such as woman being bound up, with their mouths taped over, thrown in the back of a car, and being driven across the border. This is completely fake, and one wonders what kind of sick mind it takes to concoct such a story. What’s worse is the story comes direct from a MOVIE, hence it is complete FICTION. Yet, Pres. Trump is using that scenario, and others like it, to develop national policy.

Even if there was some truth — does it constitute an Emergency? Going by the dictionary, an Emergency is a “new event” which is life threatening. There is nothing new about illegal traffic flowing over the border. Folks have been doing this for thousands of years. And for this particular border, the issue has been ongoing for a long time, and therefore it is a policy issue that should be settled in Congress, not by Presidential Declaration. Finally, in a few weeks the President is supposed to present his budget proposal, and the border funding could easily have been made part of the normal budget negotiations.

Has Pres. Trump violated the law or the Constitution?

As we’ve just shown Pres. Trump has failed to prove there is an actual Emergency. Unfortunately the National Emergencies Act does not make it clear what constitutes an Emergency. It does require that the President cite specific laws he is invoking under Emergency authority. From the text of the declaration on the White House website (quoted below) it’s not clear what he’s invoking.

Hence one can say that Pres. Trump has falsely declared an Emergency. The Constitutional Crisis, if any, is about the President circumventing the Congress’s role in determining where money is spent. The President cannot unilaterally decide where to spend money, that is Congress’s job.

What is Congress’s response? Everybody else’s response?

The National Emergencies Act says that either house of Congress can pass legislation overturning a declared National Emergency. Once that legislation passes, the other house of Congress is required to consider the same legislation.

Obviously the House of Representatives is already working on the first step, and it should pass easily. The second step is a required vote in the Senate, which Sen. Mitch McConnell cannot block. There are enough Republican Senators who are screaming bloody murder that the measure should pass in the Senate.

It is possible for such a measure to then reach Pres. Trump, who is expected to Veto the measure. And then is there a Veto-proof majority in Congress?

Another angle to the response is for Activist groups or for Congress to file a lawsuit blocking the National Emergency. This will presumably get to the Supreme Court, and who knows what will happen there.

What could go wrong?

The real danger is if Pres. Trump decides to not follow the rules. What if Congress does its part, but Trump ignores them and goes on about moving funding around to build the wall? THAT would be an actual Constitutional Crisis.

Wherever we currently are is several steps away from that.

President Donald J. Trump’s Border Security Victory

The following is the official announcement by the White House, copied from: https://www.whitehouse.gov/briefings-statements/president-donald-j-trump...

Issued on: February 15, 2019

SECURING OUR BORDER: President Donald J. Trump is following through on his promise to secure the border with legislation and Executive action.

President Trump was elected partly on his promise to secure the Southern Border with a barrier and, since his first day in office, he has been following through on that promise.

As the President has said, sections of the border wall are already being built, and legislation and Executive actions are building on that progress.

Executive action being taken by the President makes available additional funding to secure our border that is essential to our national security.

LEGISLATIVE WINS: President Trump secured a number of significant legislative victories in the Homeland Security appropriations bill that further his effort to secure the Southern Border and protect our country.

The funding bill contains robust resources and additional provisions to secure the border and strengthen immigration enforcement.

The bill provides $1.375 billion for approximately 55 miles of border barrier in highly dangerous and drug smuggling areas in the Rio Grande Valley, where it is desperately needed.

More than 40 percent of all border apprehensions occurred in the Rio Grande Valley sector in fiscal year (FY) 2018.

The Rio Grande Valley was the border sector with the most known deaths of illegal border crossers in FY 2018.

$415 million will go toward addressing the humanitarian crisis at the border by providing medical care, transportation, processing centers, and consumables.

President Trump successfully rejected efforts by some to undercut Immigration and Customs Enforcement’s (ICE) ability to uphold our laws and detain illegal aliens, including criminals.

ICE funding supports nearly 5,000 additional beds to detain illegal aliens and keep criminals off our streets.

Customs and Border Protection will receive funding for 600 additional officers.

This bill will help keep deadly drugs out of our communities by increasing drug detection at ports of entry, including opioid detection staffing, labs, and equipment.

A PROMISE TO ACT: President Trump is taking Executive action to ensure we stop the national security and humanitarian crisis at our Southern Border.

President Trump is using his legal authority to take Executive action to secure additional resources, just as he promised. In part, he is declaring a national emergency that makes available additional troops and funding for military construction.

Including funding in Homeland Security appropriations, the Administration has so far identified up to $8.1 billion that will be available to build the border wall once a national emergency is declared and additional funds have been reprogrammed, including:

About $601 million from the Treasury Forfeiture Fund

Up to $2.5 billion under the Department of Defense funds transferred for Support for Counterdrug Activities (Title 10 United States Code, section 284)

Up to $3.6 billion reallocated from Department of Defense military construction projects under the President’s declaration of a national emergency (Title 10 United States Code, section 2808)

These funding sources will be used sequentially and as needed.

The Department of Homeland Security, Department of Defense, and the Army Corps of Engineers are working to create a prioritized list of segments and a work plan for the remainder of FY 2019 and beyond.

New projects could include: new levee wall, new and replacement primary pedestrian barrier, new vehicle-to-pedestrian barrier, and new secondary barrier.

NATIONAL EMERGENCY ON OUR BORDER: The President is using his clear authority to declare a national emergency as allowed under the National Emergencies Act.

Since 1976, presidents have declared nearly 60 national emergencies.

Most of the previously declared national emergencies have been continually renewed and are still in effect, after being continually renewed.

Multiple Governors have declared states of emergency along the border in the past.

Former Arizona Governor Janet Napolitano, who became President Obama’s DHS Secretary, declared a state of emergency along the border in 2005.

Former New Mexico Governor Bill Richardson also declared a state of emergency at the border in 2005.

Former President George W. Bush and former President Obama both directed the use of the military to assist DHS in securing and managing the Southern Border.

Former President Bush declared a national emergency in 2001, which invoked reprogramming authority granted by Title 10 United States Code, section 2808, and both he and former President Obama used that authority a total of 18 times to fund projects between 2001 and 2014.

ADDRESSING THE CRISIS AT HAND: President Trump is taking the necessary steps to address the crisis at our Southern Border and stop crime and drugs from flooding into our Nation.