This really could get interesting.
I had no idea, when I began this blog, the extent to which it would simply be an extension of my analytical legal career, which I abandoned a few years ago, having decided that I really didn’t care for it – which decision was, lamentably, reached 24 years before I had the financial wherewithal to act upon it. The very last thing I want to be doing at this age and stage is more frickin’ legal research, particularly if such requires me to delve into not only the US Constitution, but the overlapping complexities of both US State and Federal law. I’m Canadian for the love of God, and anyway I wanted out of this biz. But Trump keeps pulling me back in.
Today, dammit to Hell, I find myself trying to locate a full text version of the National Emergencies Act of 1976, but all I can find on Congress.gov is a summary, and this: Digital text is not available. Print format documents may be available at a federal depository library.
Thanks for the sour persimmons, cousin.
I’m desperate to know just exactly what that statute says, and I mean exactly, not what some journalist thinks it says. Donald, you see, has suggested he could break the budget deadlock over his festering Wall by declaring a state of national emergency and getting the Army to build it, presumably with diverted Defense Department funds (the Navy will just have to do without the next couple of aircraft carriers, I guess, which pisses me off because one of them was going to be the ninth in an illustrious line of warships christened with the storied name USS Enterprise). It would also, one supposes, be necessary to monopolize the energies of the Army Corps of Engineers for a few years. Probably, Our Donald hasn’t actually thought through the logistics just yet.
I know what you’re thinking, you’re thinking he can’t do that, and that’s what I thought too, but I looked it up and actually, yes he can, probably, though of course it’s complicated. It’s partly because of that damned Constitution they’re so unreasonably proud of down there, even though the bright boys in the tricorn hats left it more full of holes than a colander. This is one of those holes. It doesn’t actually say anything about the use and abuse of emergency powers. The relevant legal authority is purely statutory, and it turns out that there are emergency powers scattered all over the Federal landscape, nobody seems sure how many, but probably close to 500 different provisions in almost as many pieces of legislation. The National Emergencies Act, counter-intuitively, doesn’t consolidate any of these, it just sets out the procedures for invoking the various laws granting Presidential emergency prerogatives.
It also turns out that it’s in the sole discretion of the President when to declare an emergency that activates all those extraordinary powers, and as near as I can tell – this is why I wanted to read the actual text, because “as near as I can tell” just doesn’t cut it where I come from – there are no particular legislative criteria for what constitutes an “emergency”. Apparently, it’s an emergency if Donald says it is. {See update below}
Under the 1976 law, the President is supposed to notify Congress just exactly which provisions of which statutes he means to trigger, and you might hope that this would immediately stop Donald in his tracks, because how the hell would he know, but unfortunately, there are probably just enough trained lawyers still working in the White House Counsel’s Office to figure that out for him. There’s a rich buffet to peruse, and from what I can find out there’s not even anything requiring a triggered emergency power to have something to do with the nature of the declared emergency. Writing in the Atlantic, Elizabeth Goitein states:
…the National Emergencies Act doesn’t require that the powers invoked relate to the nature of the emergency. Even if the crisis at hand is, say, a nationwide crop blight, the president may activate the law that allows the secretary of transportation to requisition any privately owned vessel at sea.
https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/
Oh, great.
So yeah, somewhere out there in the tangled mess of Federal statutes there undoubtedly resides all the power Trump needs to build his wall with whatever funds he can get his hands on, at least on the face of it. For all I know, there’s even something in the Federal Reserve Act that allows him to print the damned money, if he feels like it. Maybe he could get them to mint him a 100 billion dollar gold coin or something. You think I’m kidding.
Nothing grants a President absolute and unfettered authority, of course, not legally. The whole point of the National Emergencies Act was to restrict the President’s leeway a bit, by granting Congress the power, among other things, to declare the emergency at an end. The thing is, as usual, there’s the law, and then there’s what actually happens, and if those two never diverged Trump would already be in the five bar motel, and I wouldn’t be searching frantically through the material on Congress.gov. Yes, there’s a Democratic House now, and I’m going to go out on a limb here and assume Nancy Pelosi would be on board for yanking hard on Donnie’s choke chain, but under the Act the declaration by Congress has to be by Joint Resolution, both chambers, so that leaves us to rely on this guy and his Republican henchmen to do the right thing. Right now, I wouldn’t bet on that with your money.
Also, since I haven’t seen the text, I can’t be sure, but I’m guessing that like any other Joint Resolution of Congress, Trump could veto it, at which point the super-majority requirements of an override would force Pelosi to obtain some Republican support, and Mitch would have to both want and be able to whip at least 25 of his Senators into line.
Do you see any of that happening? Mitch et al. just aren’t there yet.
The Courts could shut it down. Of course they could. In fact, I’m quite certain that as soon Trump makes his move there’ll be about 50 lawsuits launched by Congress and States Attorneys General. I’d have to do still more research, but I’m assuming they could impose some objective criteria around the existence of a supposed emergency. Harry Truman was thwarted by just such a ruling during the Korean War, when he tried to nationalize a striking steel industry (see, all those years of political science weren’t utterly for naught). But that was a while ago, and a much, much different Supreme Court. It could still break 5-4 our way, if Roberts shows some sense, as he sometimes does, and even if Ginsberg doesn’t show up – health problems have her MIA as I write this – a split decision would leave a lower court ruling in effect, except, how long do you think it would take Mitch and Donald to fill a vacancy, should one arise? Do you think, maybe, they’ll fast track another ringer like Kavanaugh? Or are you still holding out hope for Merrick Garland? There are those, including, of all people, generally pro-Trump Fox legal analyst Judge Napolitano, who are convinced the Supreme Court would hew to the prior decision that thwarted Truman, and I think that has to be the right answer, legally, but…well…are we really that confident in this Supreme Court? Really?
Gotta say, overall this doesn’t look so good. If Trump sends in the Army to build his wall, we might just be confronted with this situation:
Maybe not. Let me don my tall, conical optimist hat for a second. SCOTUS might reassert sanity. Maybe, too, an enraged and frankly terrified Congress would unite to not only declare the emergency ended, but impeach the demented maniac on the manifold grounds already in evidence, plus the new one that by horsing around with the Army he’s posing a clear and present danger to democracy. That could happen too. You can’t prove that it wouldn’t. You don’t know that for sure.
Or maybe we won’t even get to find out, I mean, this wouldn’t be the first time Trump barked and snorted and then did jack. Maybe, yet, when you think about it, it’s really a wonder that The Donald hasn’t made use of this big shiny bully-boy toy already. Here’s my greater worry: if Trump goes ahead and pulls the trigger on this, and gets away with it, he’ll acquire a taste for it. You know he will. Next thing you know, he’ll suspend elections for the duration of some new emergency – citing, perhaps, all those illegal voting fraudsters, the ones that gave Hillary her edge in the popular vote – and when I, and you, and everybody else starts jumping up and down hollering that he can’t do that, Donald will just smile his imbecile smile and remind everybody that he’s got the Army, while what we’ve got are piles and piles of laws we just printed off, and this ain’t rock-paper-scissors.
I remain convinced that sometime relatively soon, this dam is going to burst, and the Republican caucus in Congress will find it both necessary and expedient to turn on Trump. They just aren’t there yet. Not yet. Perhaps if Trump pushes his luck here, they will be. Nobody in Congress wants this. Republicans in border states are horrified at the prospect of the Feds, or God forbid the Army, seizing private land and ripping up the landscape. Trump’s manufactured wall crisis could be the last straw.
I hate like Hell to rely on that, though. Meanwhile, this talk of emergency powers has me spooked.
You know, if you look it up, close to 250 years is pretty damned good for a republic. They hardly ever last that long.
UPDATE: A good friend located the full text of the Act for me, and a useful article also appeared in the Atlantic. This is the key provision:
With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.
It can be argued that the words “during the period of national emergency” import an objective element, the need for the actual existence of an emergency which cannot be said to exist merely because the President declares it to exist. I like the idea, but am dubious. See:
the needlefish 