Can President Trump Declare a National Emergency ?

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Can President Trump Declare a National Emergency ?

Postby toucana on January 5th, 2019, 1:50 am 

President Trump has threatened to declare a National Emergency and use his executive powers to seize land and build his border ‘Wall’ with Mexico without the explicit support of congress.

https://www.nbcnews.com/politics/white-house/trump-threatens-shut-down-government-months-or-even-years-schumer-n954856

The question of interest is whether he can legally and constitutionally pursue any such a course of action ?

One interesting precedent occured during the presidency of Harry Truman at the height of the Korean war. In 1952 President Truman issued an executive order to seize steel plants that were having labour troubles and threatening to go on strike.

https://en.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._v._Sawyer

In Youngstown Sheet & Tube Co. v. Sawyer, the “Steel Seizure Case,” the Supreme Court held 6-3 that Truman exceeded his authority when he issued an executive order directing the commerce secretary to seize steel mills to avert a strike during the Korean War.

In his concurrence, Justice Robert H. Jackson set out the president’s power in three situations:

1) when the president acts in accordance with “an express or implied authorization of Congress,” the president is at his broadest authority;

2) when the president acts without “either a congressional grant or denial of authority,” his power is based only upon reliance of his own independent powers” where there is potential for concurrent authority with Congress; and,

3) when the president acts against the express or implied will of Congress, “his power is at its lowest ebb.”

Jackson found that the seizure by Truman fell within the third category. The Jackson concurrence has subsequently been relied upon when assessing the extent of a president’s authority.

Any attempt by Trump to build a wall by force majeure in the name of a National Emergency would not only involve a legally problematic seizure of private land, it would also involve commandeering the industrial output of steel production plants within the US (Walls are made of steel), and would collide head-on with the precedent of the Jackson concurrence.
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Re: Can President Trump Declare a National Emergency ?

Postby TheVat on January 5th, 2019, 9:00 pm 

This is a legitimate issue in political theory. Mods are asked to leave this thread as is.
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Re: Can President Trump Declare a National Emergency ?

Postby Serpent on January 5th, 2019, 10:32 pm 

When declaring a state of emergency, doesn't the president have to state for the record what emergency he's responding to, and how this proposed measure averts the emergency? (Asking sincerely: I don't know the protocol.)
Of course, Truman was wrong in the first instance: Korea posed no threat to the US, in the second: a slowing of tank production wouldn't have substantially affected the non-winning potition they were already in and the third: even if both of those pre-conditions had obtained, the same result could be achieved by giving the workers what they wanted.

In Trump's case, migrants pose no threat to the US; a wall wouldn't get built just because he seized some farms; even if a wall got built, it wouldn't neutralize the non-threat.

Also, wouldn't he need the armed forces - or at least state militias - to co-operate?
Would they - knowing it's clearly unconstitutional?
And that the man giving the order is under the shadow of impeachment?
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Re: Can President Trump Declare a National Emergency ?

Postby -1- on January 6th, 2019, 5:23 am 

True, but wasn't his presidency mainly decided by a majority support (questionable, but still) of his agenda to build the wall? This issue: popular support and campaign promise of the very act, was a not a part of the case precedent with Truman. Can argue that the People voted him in on the promise of the wall.

Also, when Ronald Reagan fired all the air traffic controllers in the USA who had gone on strike, having declared (perhaps? I am not sure of the reason, or rationale, though I was in North America, but my English was poor then) national emergency, or perhaps there is a clause of "essential service", which Reagan invoked when he issued his order.

In effect, I don't know if Reagan invoked a national emergency or the "essential service" act, but I do believe he did that without the support of the House or the Congress.
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Re: Can President Trump Declare a National Emergency ?

Postby Serpent on January 6th, 2019, 11:42 am 

-1- » January 6th, 2019, 4:23 am wrote:True, but wasn't his presidency mainly decided by a majority support (questionable, but still) of his agenda to build the wall?

No. Only 26% of eligible voters cast their ballot for Trump (The questionable part is how many votes cast against him were suppressed.), and that constituency breaks down into several motivation, only one of which is wall-building - maybe 10% support on that issue. (even though he's never stopped campaigning on it and producing ever more overheated anti-immigrant propaganda - probably on the taxpayers' tab)

Can argue that the People voted him in on the promise of the wall.

Not on any substantial grounds. In any case, there was more popular support than that for Obama's campaign promise of health care reform and when his party's bills were rejected, eviscerated and bawdlerized before passage, nobody expected him to seize and nationalize the insurance companies (even though illness is a more real threat to Americans than Guatemalan families are.) Hoover, with 57% of the popular vote, never called out the marines to put "a chicken in every pot and a car in every garage".

Reagan't actions were very much in line with Truman's, but he didn't actually nationalize an industry or private lands. Americans are generally okay with union-busting, but property is sacred.
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Re: Can President Trump Declare a National Emergency ?

Postby -1- on January 6th, 2019, 4:19 pm 

Serpent » January 6th, 2019, 11:42 am wrote:
-1- » January 6th, 2019, 4:23 am wrote:True, but wasn't his presidency mainly decided by a majority support (questionable, but still) of his agenda to build the wall?

No. Only 26% of eligible voters cast their ballot for Trump (The questionable part is how many votes cast against him were suppressed.), and that constituency breaks down into several motivation, only one of which is wall-building - maybe 10% support on that issue. (even though he's never stopped campaigning on it and producing ever more overheated anti-immigrant propaganda - probably on the taxpayers' tab)

Can argue that the People voted him in on the promise of the wall.

Not on any substantial grounds. In any case, there was more popular support than that for Obama's campaign promise of health care reform and when his party's bills were rejected, eviscerated and bawdlerized before passage, nobody expected him to seize and nationalize the insurance companies (even though illness is a more real threat to Americans than Guatemalan families are.) Hoover, with 57% of the popular vote, never called out the marines to put "a chicken in every pot and a car in every garage".

Reagan't actions were very much in line with Truman's, but he didn't actually nationalize an industry or private lands. Americans are generally okay with union-busting, but property is sacred.


I have a few arguments, but I shut up because I don't want to talk about Trump.

Instead, I wish to cast light on the issue of "national emergency". Who declares a national emergency? Can the president (Trump or others== this is NOT about DT) alone and at his sole decision declare a national emergency?

It seems that if it is declared, then it can be attacked in the courts.

However, if the supreme court is in the hand of the president (Republicant or Democratic, no matter which) , and the president buys them or plays kahootz with them in one way or another, then this is the ticket for Fascism in the USA.

1. The president declares national emergency because of the killer bees. (k.b. - an example.)

2. Someone challenges the NE decision, in court.

3. NE decision is struck down by the court.

4. POTUS appeals.

5. Supreme court decides for the POTUS.

6. President never has to officially end the national emergency; he or she never again needs or is compelled to call an election.

7. Fascism attained. (not Naziism! Please don't make the mistake of mixing the two. Naziism is fascism with a Jew hatred; fascism is a political stagnancy after power is attained by a democratic selection process. It usually is accompanied by concentration of military and political power in the hand of a few or of one; and what we in "free" countries could possibly call "state-run racketeering" as well as nepotism and concentration and officialization of corruption. What makes Fascism into Naziism can be (theoretically) combined with communism, democracy, theocracy, monarchy, anarchy, etc. etc.)
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Re: Can President Trump Declare a National Emergency ?

Postby Serpent on January 6th, 2019, 6:14 pm 

-1- » January 6th, 2019, 3:19 pm wrote:Instead, I wish to cast light on the issue of "national emergency".
Who declares a national emergency?
Can the president (Trump or others== this is NOT about DT) alone and at his sole decision declare a national emergency?
Yes, but he can't act on it alone.

SEC. 201. (a) 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 trans-
mitted to the Congress and published in the Federal Register.


t seems that if it is declared, then it can be attacked in the courts.

It can also be quashed in Congress.
SEC. 202. (a) Any national emergency declared by the President
in accordance with this title shall terminate if—
(1) Congress terminates the emergency by concurrent resolu-
tion ; or
(2) the President issues a proclamation terminating the
emergency.

[National Emergencies Act https://www.govtrack.us/congress/bills/94/hr3884/text]

However, if the supreme court is in the hand of the president (Republicant or Democratic, no matter which) , and the president buys them or plays kahootz with them in one way or another, then this is the ticket for Fascism in the USA.

It could be, if the president actually owned the Supreme Court judges he or his party predecessors nominated. This is not invariably the case: they are not all corrupt; sometimes it turns out their first loyalty is the law. There are other legal constraints, as well. The particular kind of emergency declared automatically comes under the auspices of the relevant agencies.

1. The president declares national emergency because of the killer bees. (k.b. - an example.)

Then he would have to call on the HHS and EPA to step in, giving them expanded powers and budgets for the task.

2. Someone challenges the NE decision, in court.

When he reports to Congress, they review the matter and approve, amend or countermand the measures he's proposed. If he doesn't and it becomes a legal issue,

3. NE decision is struck down by the court.

4. POTUS appeals.

5. Supreme court decides for the POTUS.

During the legal process, action would be suspended. Meanwhile, the state of emergency would automatically terminate.

6. President never has to officially end the national emergency; he or she never again needs or is compelled to call an election.

He has to set a termination date at the time of declaring. If he wants extensions, they have to be approved by Congress at predetermined intervals.

7. Fascism attained.

Not yet. The EPA was never armed or authorized to use force against US citizens; only to fight killer bees.

I suspect the only kind of national emergency the president can declare that would result in a fascist regime is an open political confrontation: civil war, secession of more than one state, armed uprising or widespread riots, general strikes beyond the state law enforcement agencies to contain. (Or, obviously, terrorist attack a la Bush Jr, or invasion - which I suppose is why the national DT keeps trying to inflate the threat of unarmed foreigners. ) In any of those cases, the president would still require armed forces and their commanders to be loyal to him personally. I'm not at all sure he's confident of their compliance.
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Re: Can President Trump Declare a National Emergency ?

Postby kidjan on January 16th, 2019, 12:13 am 

-1- » Sun Jan 06, 2019 4:23 am wrote:True, but wasn't his presidency mainly decided by a majority support (questionable, but still) of his agenda to build the wall? This issue: popular support and campaign promise of the very act, was a not a part of the case precedent with Truman. Can argue that the People voted him in on the promise of the wall.


Three problems with that:

  1. He lost the popular vote, so this argument isn't particularly compelling. But even if we take into account the electoral college as a proxy for popular support,
  2. It doesn't matter if he won the election with 98% of the popular vote and 100% of the electoral vote; the Constitution does not expressly grant the president additional powers in times of national emergency. Congress grants those powers.
  3. If Congress is unwilling to grant the funds or clearly expressed powers, that is also the electorate expressing their legislative will. A president's constitutional power is to execute, not legislate. Legislation is necessarily tied to a congressional mandate, not an executive one. And that congressional mandate does not include $5.6B for a wall whether Trump likes it or not.

So the question really isn't "is he popular enough to take this action." That isn't how our government works; that's how a backwater African dictatorship works. The question is whether or not the executive action is legitimate enough to survive a legal challenge. Because undoubtably, a use of these executive powers will be challenged.

And the historic precedent here isn't great. Lincoln suspended the writ of habeas corpus during the Civil War--the SC ruled that unconstitutional, which Lincoln ignored and contemplated jailing the chief justice. FDR interned Japanese Americans during WW2; the SC ruled this an appropriate use of his congressionally granted emergency powers. That decision is widely regarded as being horribly wrong. Truman, as mentioned, was shut down, and probably appropriately so.

So to be honest... it's a crapshoot. The American people elected a demonstrable liar/demagogue to the oval office, and I'm sorry to admit the will of the people must be respected, consequences be damned. And that consequence will be: a fairly clear abuse of congressionally granted executive power by a sitting president, which will only be checked by a supreme court challenge. It's unclear to me how our current court would rule.

In effect, I don't know if Reagan invoked a national emergency or the "essential service" act, but I do believe he did that without the support of the House or the Congress.


Current support of Congress is irrelevant. The only thing that is relevant is A) what powers congress has legislatively granted and B) whether or not those will hold water when challenged by the judicial branch and C) whether or not the president will acknowledge the supreme court's decision (final point compliments of Lincoln, who admittedly was dealing with the Civil War and I think his decision was ultimately correct).
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