Trump Border Wall National Emergency Declaration-The Facts!

Congress Doth Protest To Much!

Confused by all of the so-called legal analysts on TV, including the sour grapes Judge Napolitano on Fox, (Napolitano apparently is holding a grudge as Trump picked Kavanagh over him) regarding the possible Emergency Declaration by President Trump to fund and build-out the wall on the Southern Border?  Then you get to listen to all of the Congress men and women, who know virtually nothing about federal law and the US Constitution (scary thought), say that Trump would be setting bad precedent, and the funding and build-out of the border wall is solely within the power of Congress or that this action by the President would be met with lawsuits and is a “fool’s errand”.

Is The Southern Border Illegal Immigration a Crisis?”

To hear the Democrats, Left-Wing-Media, RINOs and others, the Southern Border is just fine and while the murdering of a US residents by an illegal alien is “tragic”, it does not add to the designation of the border situation being  a CRISIS.  Recently, I posted an article “Why a Border Wall is ABSOLUTELY Necessary”, Link: https://wp.me/pY51c-1f5.  Some of the justifications that I cited included date published by DHS for 2017-2018:

Drug Smuggling:  Methamphetamines:  38% Increase; Heroin (Opioids):  22% Increase; Fentanyl:  73% Increase

Drug Smuggling Seizures by Border Patrol: 282,000 Lbs. Cocaine; 248,000 Lbs. Methamphetamines; 6,500 Lbs. Heroin (opioids); 2,400 Lbs. Fentanyl; 7,000,000 Lbs. Narcotics Seized In Total In 2018

Terrorists, Gangs, and Criminals Arrested: 3,755 Known Terrorists; 6,000 Gang Members; 17,000 Adults with Existing Criminal Records; Criminal Organizations Make $2.5 Billion in Profit Each Year from Migrant Smuggling!

Rise in Vulnerable Populations Overwhelming Resources: 60,000 Unaccompanied Children-Increase of 25%; 161,000 Family “Units”-Increase pf 59%; 2,000% Increase in Asylum Claims even though 72% do not qualify for Asylum! Over 2,000 Persons Per Day (730,000/yr annualized) are Captured at the Border.  These cannot be deported because of “Catch and Release”.

Depth of Humanitarian Crisis at Southern Border: 50 Migrants/Day Referred to Medical Providers; 4,300/Yr People in Distress Rescued by CBP; 31% of Women Sexually Assaulted on Journey; 17% of Men Sexually Assaulted on Journey; 70% of Migrants Traveling are Victims of Violence.

If all of the so-called experts do not think that we have a genuine Crisis at the Southern Border, then consider some of the Emergency Declarations that are STILL ACTIVE that have been declared by Presidents since Jimmy Carter and none, to my knowledge were ever challenged seriously by Congress or challenged in court by so-called aggrieved parties.  (For a total list of active declarations, scroll down to bottom of this article)

Presidential Authority to Declare a National Emergency Via the National Emergencies Act of 1974

Congress, yes those petulant morons that appear on TV every minute decrying Trump’s illegal and unconstitutional actions, GRANTED BROAD POWERS to the President Under the National Emergencies Act of 1976.  According to Elizabeth Goitein of the Brennan Center for Justice’s Liberty and National Security Program, the President has broad powers as she stated:  “So if he can really just sign his name to a piece of paper, whether it is a real emergency or not, that creates a state of emergency that gives him access to these special powers that are contained in more than 100 different provisions of law that Congress has passed over the years.”  Further she stated, “Congress chose not to put any substantial or really any barriers on the president’s ability to declare a national emergency.”

So, Congress has an “Aw Shi#” moment.  Their original law granting the President far-reaching emergency powers included the provision that the House could pass a resolution by simple majority and the Senate could affirm the resolution by simple majority and the President COULD NOT VETO THE RESOLUTION DECLARING HIS EMERGENCY DECLARATION AS VOIDTo bad for Congress, the pesty Supreme Court ruled in 1984 that the President had CONSTITUTIONAL powers to veto any Congressional Legislation, including this act, and that Congress could only THWART THE VETO BY A 2/3rds VOTE OF BOTH HOUSES!    So, if President Trump declares that the Southern Border is an emergency and poses a threat to American Sovereignty, and/or, it is creating a humanitarian crisis, and/or it is endangering Americans by flooding drugs into our communities, and/or, it is promoting human trafficking, the House and Senate would have to have enough votes to overturn a Trump Veto if they attempt to invalidate his declaration!

Jonathon Turley quoted the Congressional Research Center when it wrote in 2007, “Under the powers delegated by such statutes, the president may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.”

Further, Congress has passed laws that allow the President to tap the military to design and contract for the wall and that any Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.” Will the Democrats sue?  Absolutely!

Those that claim Trump should not issue the declaration as it would set a bad precedent are too late.  Congress has already lost this battle by “self-emasculation” via their own legislation.  Obama has already used non-existent executive powers to rewrite immigration law and granting status to DACA recipients.  Any good Left-Wing Progressive cares less about precedent!  

Who has “Standing” in Court to Sue Trump Over the Declaration

In terms of the declaration itself, since Congress passed the law, it would have some level of standing (the right to sue as an aggrieved  party) and attempt to invalidate the President’s declaration.  But, CONGRESS BUILT INTO THE LAW THE METHOD WHEREBY THE CONGRESS COULD CHALLENGE THE PRESIDENT VIA RESOLUTIONS THAT ARE SUBJECT TO A VETO!  The Democrats in Congress could file a suit to invalidate the declaration, but it would probably not be upheld by the Supreme Court as Congress gave up their standing within their own legislation!

Eminent Domain:  Some argue the landowners along the border who have not sold or granted access easements to the Federal Government where the wall would be built, would have standing to sue the Trump Administration citing the National Emergency Declaration as being harmful to the value of their real and personal property. BUT!  The procurement of these lands is subject to negotiation or legal proceedings via Eminent Domain.  The latter action and procedures are subject to their own statutes and remedies and do not necessarily provide standing against the National Emergency declaration.  The Federal Government would either have to negotiate access rights or an outright land purchase from such landowners or use Eminent Domain to procure the land.  While the landowners may sue citing the declaration, there is a slim chance the Supreme Court would deem their standing valid.  

Timing of the Legal Actions and Impact on Building the Wall

Once Trump issues the emergency declaration, the lawsuits will start. 

  • A Democrat Friendly Federal District Court would probably issue a cease and desist order against the declaration that would be immediately challenged by the Trump Administration. 
  • If the challenge does not cause the Federal Court to reverse the injunction, the Administration would appeal the lower court decision. 
  • The first action would have probably been filled within notorious the 9th District. 
  • The 9th District Court of Appeals would probably uphold the lower court’s injunction. 
  • The Administration would have to then appeal to the Supreme Court. 
  • The Administration could appeal the original decision directly to the Supreme Court, by passing the appellate court, but they tend not to short-circuit the appeal process through the lower courts.  

This process could take anywhere from 3 months to two years!  But, the Army Corps of Engineers could begin the design of the project; the property procurement could commence; and contacts could be developed.  It is doubtful that the Administration would drop everything and wait on the lawsuits!  

Trump, and his supporters, don’t have much to lose.  The Democrats are not going to fund the wall at this point and may not up through the 2020 elections. 

At least declaring an emergency could get the ball rolling and Trump has enough discretion to begin the process.  Right now it is a game of chicken and we will see who blinks first. 

Trump is looking for existing funding within the impacted agencies to make payroll.  If he does this, he can pretty much wait out the Democrats!  He already appears to be the only adult in the negotiations as Chuck and Nancy have only sat on their hands.  Time will tell.

RD Pierini

@RDPierini

 

31 Active Emergency Declarations Since jimmy Carter:

1. Blocking Iranian Government Property (Nov. 14, 1979)
2. Proliferation of Weapons of Mass Destruction (Nov. 14, 1994)
3. Prohibiting Transactions with Terrorists Who Threaten to Disrupt the Middle East Peace Process (January 23, 1995)
4. Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum Resources (March 15, 1995)
5. Blocking Assets and Prohibiting Transactions with Significant Narcotics Traffickers (October 21, 1995)
6. Regulations of the Anchorage and Movement of Vessels with Respect to Cuba (March 1, 1996)
7. Blocking Sudanese Government Property and Prohibiting Transactions with Sudan (November 3, 1997)
8. Blocking Property of Persons Who Threaten International Stabilization Efforts in the Western Balkans (June 26, 2001)
9. Continuation of Export Control Regulations (August 17, 2001)
10. Declaration of National Emergency by Reason of Certain Terrorist Attacks (September 14, 2001)
11. Blocking Property and Prohibiting Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism (September 23, 2001)
12. Blocking Property of Persons Undermining Democratic Processes or Institutions in Zimbabwe (March 6, 2003)
13. Protecting the Development Fund for Iraq and Certain Other Property in Which Iraq has an Interest (May 22, 2003)
14. Blocking Property of Certain Persons and Prohibiting the Export of Certain Goods to Syria (May 11, 2004)
15. Blocking Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus (June 16, 2006)
16. Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo (October 27, 2006)
17. Blocking Property of Persons Undermining the Sovereignty of Lebanon or Its Democratic Processes and Institutions (August 1, 2007)
18. Continuing Certain Restrictions with Respect to North Korea and North Korean Nationals (June 26, 2008)
19. Blocking Property of Certain Persons Contributing to the Conflict in Somalia (April 12, 2010)
20. Blocking Property and Prohibiting Certain Transactions Related to Libya (February 25, 2011)
21. Blocking Property of Transnational Criminal Organizations (July 25, 2011)
22. Blocking Property of Persons Threatening the Peace, Security, or Stability of Yemen (May 16, 2012)
23. Blocking Property of Certain Persons Contributing to the Situation in Ukraine (March 6, 2014)
24. Blocking Property of Certain Persons With Respect to South Sudan (April 3, 2014)
25. Blocking Property of Certain Persons Contributing to the Conflict in the Central African Republic (May 12, 2014)
26. Blocking Property and Suspending Entry of Certain Persons Contributing to the Situation in Venezuela (March 9, 2015)
27. Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities (April 1, 2015)
28. Blocking Property of Certain Persons Contributing to the Situation in Burundi (November 23, 2015)
29. Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption (December 20, 2017)
30. Imposing Certain Sanctions in the Event of Foreign Interference in a United States Election (September 12, 2018)
31. Blocking Property of Certain Persons Contributing to the Situation in Nicaragua (November 27, 2018)

Hat Tips

https://www.newsmax.com/newsfront/chuck-grassley-trump-border-wall-shutdown/2019/01/11/id/897858/

https://codes.findlaw.com/us/title-10-armed-forces/10-usc-sect-2808.html

https://www.brennancenter.org/analysis/emergency-powers

https://www.npr.org/2019/01/09/683501440/congress-aims-to-control-presidents-emergency-powers

https://fas.org/sgp/crs/natsec/98-505.pdf

https://jonathanturley.org/2019/01/10/yes-trump-has-the-authority-to-declare-a-national-emergency-on-the-southern-border/

Professionalism is Appreciated

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s