Patterico's Pontifications


Networks Give Airtime To Trump To Make Case For Wall, And Give Democrats Time For Rebuttal

Filed under: General — Dana @ 8:11 am

[guest post by Dana]

Responding to pressure from Nancy Pelosi and Chuck Schumer, the networks will be giving the Democrats airtime to rebut any claims the president makes tonight during his primetime address to the nation concerning border security:

Several major networks announced on Tuesday morning that they will air the Democratic response to President Donald Trump’s prime-time Oval Office address on immigration.

So far, CBS, NBC, and CNN have said they will carry the response. On Monday, all of of the major networks said they would air the president’s speech, prompting Democratic leaders to call for space to rebut him.

“Now that the television networks have decided to air the President’s address, which if his past statements are any indication will be full of malice and misinformation, Democrats must immediately be given equal airtime,” House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer said in a joint statement on Monday.

Vice President Mike Pence said the president will use his speech to “explain to the American people that we have a humanitarian and security crisis at our southern border.”

CNN is reporting that Nancy Pelosie and Chuck Schumer will be giving the response for the Democrats tonight. And before anyone cries foul, Dave Weigel reminds us that the networks gave the GOP airtime to give a rebuttal to a non-SOTU speech (by President Obama) concerning the debt limit.

Ilya Somin considers whether the president can claim emergency powers in order to use eminent domain to build his wall without congressional authorization:

President Donald Trump claims he can use an “emergency” declaration to secure funding to use eminent domain to acquire land for his border wall, even without any additional congressional authorization. The validity of this claim is dubious at best. It is far from clear that emergency powers can be used to build the wall. Even if they can, it is questionable whether that would authorize the use of eminent domain to seize private property. And if the president succeeds in using an emergency declaration for such dubious purposes, it would set a precedent that conservative Republicans are likely to have reason to regret the next time a liberal Democrat occupies the White House.

In a recent New York Times op ed, Yale Law School Prof. Bruce Ackerman outlines some reasons why it would be illegal for Trump to use an emergency declaration to build the wall: President Trump on Friday said that he was considering the declaration of a “national emergency” along the border with Mexico, which he apparently believes would allow him to divert funds from the military budget to pay for a wall, and to use military personnel to build it…

Begin with the basics. From the founding onward, the American constitutional tradition has profoundly opposed the president’s use of the military to enforce domestic law. A key provision, rooted in an 1878 statute and added to the law in 1956, declares that whoever “willfully uses any part of the Army or the Air Force” to execute a law domestically “shall be fined under this title or imprisoned not more than two years” — except when “expressly authorized by the Constitution or Act of Congress….”

In response to the Hurricane Katrina disaster in New Orleans, Congress created an express exception to the rules, and authorized the military to play a backup role in “major public emergencies.” But in 2008 Congress and President Bush repealed this sweeping exception. Is President Trump aware of this express repudiation of the power which he is threatening to invoke?

The statute books do contain a series of carefully crafted exceptions to the general rule. Most relevantly, Congress has granted the Coast Guard broad powers to enforce the law within the domestic waters of the United States. But there is no similar provision granting the other military services a comparable power to “search, seize and arrest” along the Mexican border.

Not everyone agrees:

…Ackerman’s Yale colleague John Fabian Witt argues that the issues are not as clear as the former suggests:

The truth is that the White House’s emergency gambit reveals the full extent of Congress’s dangerous delegation of emergency powers to the executive branch of the federal government. Elizabeth Goitein of the Brennan Center has collected a daunting list of statutes authorizing emergency powers, which is super helpful on this point. (Liza summarizes the statutes in a recent article at The Atlantic.) The upshot? Declaring a national emergency to build the president’s ridiculous wall would be a national embarrassment. It ought to be unlawful, too. But whether declaring a national emergency to build a wall actually is unlawful under current circumstances turns out to be much closer question than it should be. The key statutory provisions are 10 U.S.C. 2808 (authorizing emergency reallocation of certain military construction funds) and 33 U.S.C. 2293 (authorizing emergency reallocation of certain civil works project funds).

Somin urges consideration of the long-term unintended consequences that could come back to haunt conservatives:

I would tentatively conclude that Trump cannot use these provisions to appropriate funds for the construction of a border wall – even if he does declare a “national emergency.” However, courts often give presidents undue deference on national security and immigration issues, and that problem could recur here. I would be lying if I said I could confidently predict the outcome of a legal battle over this issue. I should also emphasize that I am far from being an expert on the full range of dubious emergency powers Congress has delegated to the president. So it’s possible I am overlooking some other possible source of wall-building authority….If Trump is able to overcome legal obstacles and use an emergency declaration to secure funds for the wall without congressional authorization and use eminent domain to seize the land he needs, conservatives are likely to have good reason to regret the precedent it would set. The same powers could easily be used by the next Democratic president for purposes that the right would hate.

Consider a scenario where Elizabeth Warren wins the presidency in 2020, but Republicans in Congress refuse to allocate funds she claims are necessary to combat climate change and institute the gigantic “Green New Deal” program many progressives advocate. President Warren could then declare climate change to be a “national emergency” and start reallocating various military and civilian funds to build all kinds of “green” construction projects. She could declare that climate change is a threat to national security, and use the Army Corps of Engineers and other military agencies to participate in the project.

Anyway, tonight Trump addresses the nation “on the humanitarian and national security crisis on our Southern border,” (this during the 3rd week of the shutdown). On Thursday, he will head to the Southern border “to meet with those on the frontlines of the national security and humanitarian crisis.”

Reading a variety of reports from media outlets “representing” both sides of the aisle (while attempting to appear neutral), what constitutes a “national security and humanitarian crisis” on the border sure appears to be up for grabs.

(Cross-posted at The Jury Talks Back.)


Will Trump Declare an Emergency Tonight?

Filed under: General — Patterico @ 7:59 am

Will Trump declare a national emergency in his short speech from the Oval Office tonight? The #FAKENEWS WSJ says he is still undecided. Tune in to find out in a very special episode of “The Trump Presidency: National Emergency”! Meanwhile, The #FAKENEWS WaPo says Trump may be able to declare an emergency, but the road from that declaration to $$$$$ for steel slats may be bumpy:

In 1976, Congress passed the National Emergencies Act, which permits the president to pronounce a national emergency on a whim, at his discretion. The act offers no definition of “emergency.” It lays out no required criteria; it demands no showing by the president.

Declaring a national emergency also gives the president access to dozens of laws with specialized funds he otherwise would not have.

There are several significant caveats and, while it may be easy to declare a national emergency, Trump cannot just do whatever he wants.

One statute provides for “unobligated funds originally set aside for military construction projects” if the national emergency involves the military, and another “permits a president to divert funds from Army civil works projects and reprogram them” but still may require further authorization. Then there is the issue of seizing land through eminent domain through a claim of military necessity. Read the piece for a fuller discussion of the legal niceties.

A lot of this sounds like the kind of stuff that alarmists warned about Obama. Not that he would build a wall, silly! No, I mean that he would announce sweeping legislative-style solutions for problems that require Congress’s approval.

And he did. And we didn’t like it.

And many of us claimed that it wasn’t just the policy that bothered us, but the affront to the concept of the separation of powers.

And some of us meant it.

And some others didn’t.

We may have a chance to see in the coming days who was motivated by which team they were on, and who was motivated by issues of constitutional principle.

I try to be an optimistic guy, but recent history gives me little hope for optimism here.

[Cross-posted at The Jury Talks Back.]

P.S. No comments here. Direct your comments to Dana’s post.

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