aside US Congress Including GOP Members Need To Fix 1976 National Emergency Act

I’ve taken time to read the National Emergency Act of 1976 which is the statute that the republican President Donald Trump based his recent February 2019 announcement, detailing his plans to divert monies (about $6.5 billion dollars) already allocated by the US Congress for other purposes, towards the building of his SW border wall which he argues is crucial to prevent criminals, illegal drugs and other contraband from entering our country via migrants from Central American countries via Mexico. The fact that credible studies which include US government collected data counter the president’s assertions, is immaterial.

Here’s the problem. The text of the National Emergency Act of 1976 is so overly broad that a ‘national emergency’ can be just about anything that the president decides that it is. There are NO RESTRICTIONS.

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“In the past, when former Democratic and Republican Party US presidents have acted on the basis of this statute, the threat was from foreign entities or natural catastrophes, the threat/ danger was imminent where time was of the essence to appropriate the required funds; and the members of the US Congress were in agreement. It was not because the members of the US Congress had refused to fund a pet presidential project.”

“It can be argued that the way the president is using the National Emergency Act of 1976 is counter to the concept, that it is the US House of Representatives within the US Congress which holds ‘the power of the purse.’ As per Wikipedia, “In the federal government of the United States, the power of the purse is vested in the Congress as laid down in the  Constitution of the United States, Article I, Section 9, Clause 7 (the Appropriations  Clause and Article I, Section 8, Clause 1 (the Taxing and Spending Clause).”

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If the GOP US Congressional lawmakers do not fight back on the president’s improper usage of the ‘National Emergency Act of 1976, then they are anointing President Trump as the US emperor. The GOP Congressional legislators cannot sit back in this instance. Depending on the US courts to constrain presidential powers means that they are refusing to their jobs.

If GOP lawmakers refuse to act, I want Democrats to issue ads NOW on how they fought President Obama when they believed he overreached the powers of his office by issuing executive orders on immigration issues, but which were shy of declaring a ‘National Emergency’ as President Trump has done.

It’s important to note that GOP lawmakers / leaders fought tooth and nail the Democratic Party’s President Barack Obama’s usage of an ‘executive order,’ pertaining to the immigration issues of DACA Deferred Action on Childhood Arrivals and DAPA Deferred  Action for Parents of Americans and Lawful Permanent Residents, which was short of declaring a ‘National Emergency.’

In fact, by October 15, 2017, the republican President Donald Trump repealed this Obama executive order related to DACA with instructions that it was time for the US congress to do its job.

They referred to President Obama acting as if he had sovereign powers. President Obama’s executive orders were fought by GOP activists all the way up to the US Supreme Court where the court ruled in favor of the president’s DACA program but affirmed a lower court’s ruling that placed an injunction on his DAPA plans.

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Background (Source: scholarship.law.berkeley.edu)…

“In June 2016, a divided Supreme Court, missing its ninth member due to the death of Justice Antonin Scalia and the subsequent refusal of a Republican-controlled Senate to confirm President Obama’s nominated candidate, issued a one-sentence per curiam ruling, simply stating that “[t]he judgment is affirmed by an equally divided court.” The 4-4 deadlock left in place the injunction issued by Judge Hanen, blocking DAPA and expanded DACA from implementation.”

“President Obama announced the creation of a program known as Deferred  Action for Parents of Americans and Lawful Permanent Residents (“DAPA”). This program instructed executive branch officials to exercise administrative discretion to defer the deportation of undocumented immigrants who were the parents of either U.S. citizens or legal permanent residents.18 These individuals would be able to apply for “deferred action,” a mechanism through which immigration authorities would deprioritize their removal, thus placing a particular case upon the back burner. If granted deferred action under DAPA, the individual would receive a renewable but still revocable reprieve from deportation for three years. Under already existing regulations, a grant of deferred action would also make the recipient eligible for authorization to legally work in the United States.”

“It is estimated that 3.6 million individuals were eligible for DAPA. DAPA followed the earlier creation in June 2012 of the Deferred Action for Childhood Arrivals program (“DACA”), which allowed undocumented individuals who had arrived in the United States as children, and who met other criteria, to be eligible for deferred action.”

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“As of March 31, 2016, 819,512 individuals had applied for DACA; 728,285 were approved and granted deferred action for a period of two years.21 DACA, presumably because its young recipients were conceptualized as more deserving and less culpable than DAPA beneficiaries, met with far less public opposition. When President Obama announced the DAPA program, he also announced that DACA would be expanded by increasing the deferred action period to three years and by changing the qualification criteria to allow more individuals to apply.”

“Those who have challenged DACA and DAPA argue that the President had exceeded his legal authority. As Hiroshi Motomura has suggested, critics “seem to believe that the President has taken the law into his own hands by doing unilaterally what only Congress can do through legislation.” Taking the law into his own hands renders this a nation not of laws, but of men; thus the charge that President Obama’s actions have violated the rule of law, actions taken to reward “lawbreakers,” no less.”

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“Yet, as many scholars have asserted, DACA and DAPA are well within a President’s legal authority. They are consistent with past exercises of prosecutorial discretion; non-enforcement is essential to the functioning of the system. As Michael Kagan put it, “[T]he Obama Administration did not invent prosecutorial discretion in immigration law.” It is impossible for the government to apprehend and individually remove every non-citizen whose presence in the US is unauthorized. Thus, there have always been exercises of discretion in determining whether particular individuals constitute a priority for removal, and this fact is reflected in legal authority.”

Here is the rest of the story…

On February 14, 2019, Peter H. Schuck, an emeritus professor of law at Yale and scholar-in-residence at N.Y.U. penned the following opinion piece for the New York Times, “The Real Problem With Trump’s National Emergency Plan” (“The fact that the president may have the authority to throw away billions on a foolish campaign promise is itself scandalous.”)

Excerpts:

“President Trump has declared a national emergency — purely in order to fund his wall. The courts may — or may not — reject his gambit.”

“But the fact that he may actually possess the legal authority to require agencies to waste billions of dollars simply to fulfill a foolish campaign promise he thinks won him the election is itself scandalous. The theatrics surrounding his petulant threat to do so obscure a vital question for our democracy going far beyond this (non)crisis, a question to which Congress should immediately turn: Who decides what constitutes a national emergency?”

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“In hundreds of laws, Congress has given the president the power to decide. (The Brennan Center for Justice has compiled an exhaustive list.) But by failing to define crucial terms, legal standards and accountability rules, Congress has handed presidents an all-too-handy tool of tyranny commonly used by autocrats to amass more power, crush dissent and eviscerate democratic institutions. In Mr. Trump’s case, it has handed an unguided missile to an ignorant, impetuous man-child.”

“Congress should have known better. After all, it enacted the National Emergencies Act of 1976, which purported to regulate such declarations, only two years after President Richard Nixon’s abuses of power forced his resignation. The act actually made matters worse in a key respect: It defined a national emergency as “a general declaration of emergency made by the president.” This circular definition, of course, is no constraint at all. Or as Humpty Dumpty says to Alice, “it means just what I choose it to mean — neither more nor less.”

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“In the nature of national emergencies, some definitional leeways are unavoidable. But Congress could readily specify certain conditions that must exist before the president can make such a declaration and thus arrogate to himself extraordinary powers — curtailing liberties, seizing property, spending funds appropriated for other purposes and suspending protective laws — that Congress would not otherwise be likely to grant him in advance, or perhaps ever. (Indeed, Congress has the power to override Mr. Trump’s declaration and it should in this case — though it probably won’t.)”

“One can easily specify some of the factors in a national emergency condition that any responsible Congress would insist on before allowing such a declaration to take effect: magnitude (the feared incremental harms of the condition are very large, not just marginal); geographic scope (those harms should be nationwide even if the triggering condition is more localized); extraordinary (the condition should be rare, if not unprecedented); imminence (the anticipated harms should be so close in time that Congress cannot deliberate); and likely effectiveness (the president’s action should promise to substantially solve the problem).”

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“Reasonable people may disagree, of course, about precisely how Congress should define and weigh these factors, how they should be applied to the facts on the ground and whether other factors should be considered. President Trump’s wall cannot survive such a rigorous analysis: Even assuming that recent illegal border crossings harm the nation, they are not greater (indeed, they are probably fewer) than in recent decades; Congress has been deliberating (in its fashion) for decades about immigration reform, including border walls; and many Americans believe that the wall would be ineffective and a bad idea. Congress simply disagrees with the president about which border security measures would do the job — an instance of decidedly normal politics.”

“But my larger claim — that Congress’s delegation to presidents of vast, essentially unconstrained power to declare national emergencies has been an irresponsible surrender of its constitutional responsibilities — does not depend on whether my assessment of this particular case is correct. Not since the New Deal has the Supreme Court struck down a statute for this kind of standardless delegation of legislative authority to administrative agencies, but the Roberts court — activist, conservative and suspicious of broad delegations of power to agencies — recently reached out to review a case, Gundy v. United States, that gives it an opportunity to revive the long-dormant and doubtful non-delegation doctrine.”

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“Another way to make the National Emergencies Act more compatible with the rule of law is through a procedure that would broaden participation in all future decisions to declare national emergencies. Under one such reform, the president would have to consult with the leaders of both parties in Congress before issuing a declaration. Even if Congress could not override such a declaration, members would have to take a public position on the facts and reasons invoked as justification by the president. If time were of the essence (not so in this case; Congress has legislated about a wall for more than a decade), their responses would have to be expedited. With such a procedure in place, judicial review of the declaration could be narrow.”

4 comments

  1. I just can’t imagine that any court of law will find that the Emergencies Act can be used to erode one of the fundamental checks and balances of the Constitution — that Congress has the sole “power of the purse.”

    Liked by 2 people

    • Dear TokyoSand,

      Here’s the rub. Remember the president’s Muslim ban. Several district courts ruled against it because of President Trump’s stated animus towards Muslims that he kept repeating both before and after his campaign.

      But on the 3rd version of the Muslim ban, the US Supreme Court ruled in favor of the president’s travel ban, saying that it was obligated to decide on the basis of what was written without considering his prior rhetoric.

      That is what President Trump is counting on with his ‘National Emergency’ order.

      Hugs, Gronda

      Liked by 1 person

  2. This is a good summary on an important issue.

    Words are often not very precise, and when viewed from the perspective of law become even more ambiguous and then when viewed by people like trump —whose end justifies any means— become tools for a personal agenda.

    To prevent personal abuses positions with institutional power as well as normal adult social interaction, requires a minimum of personal integrity and basic human qualities (empathy, compassion and remorse) yet all of the trump ”career” he has treated law as a process to manipulate for his personal agenda and hired lawyers who view law as about winning and not about justice or the ”spirit/intent” of the law much less about integrity or ethics.

    Constantly the trump defense on behaviors which are at best very questionable concerning integrity, ethics, morality and principles, is that is legal, and if you note, constantly the trump supporters attack trump critics for doing things which trump has done consistently over and over and continues to do.

    You cannot make people behave with integrity, honesty, ethically, morally, etc. there are few if any laws that can be written to prevent this kind of behavior without breeching basic American values and/or relying on ”judgement calls.” Instead it calls for a ”common sense” of right and wrong, of ethics, etc.

    As God has not seen to inform everyone in the world of a consistent truth, we are dependent on individuals having some common sense of reality, but when this fails to happen demagogues can exploit these situations.

    While politicians generally are known for minor abuses of their institutional power, trump views any means to his personal ends as best practices, and Graham and McConnell have severely abused their positions of power both during the Obama presidency and by their constant defense of trump no matter what.

    In Senator McCain’s objections to what was happening, he was not questioning the issues, but the process and the dangers of making policy resulting from the abuse of process. No matter what the rule or the law, power corrupts and absolute power corrupts absolutely. The whole life of trump has been a person of no ethics, no principles, no morals, no integrity, no compassion, no empathy, and 35% of Americans support and admire him.

    But it always comes around, while what you do is 50%, how you do it is the other 50%. In the trump world winning, what you do, is 110% and how you do it is -10%. There will never be a law which cannot be abused by an unethical politician, and I would suggest its better there is a level of common sense which prevents politicians from this behavior but there needs to be politicians who support such a common sense and such a politician needs both the ability to convince as well as having a standard for what they convince.

    Liked by 2 people

    • Dear Steve Naegele,

      You are right in your analysis. A president with no scruples will figure out where all the holes, stress points are in our democratic institutional infrastructure..

      When Dems get back the majority position in the US Senate and US presidency, they will need to plug up and fix all these holes like this National Emergencies Act of 1976; making sure that all presidential candidates are required to share at least 10 years of IRS tax returns; be required to separate themselves fully from their businesses and investments; a ban on all forms of nepotism in the White House, etc.

      It’s like you could call President Trump, the stress tester.

      Hugs, Gronda

      Like

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