In 1976, Congress passed an incredibly stupid law giving the president the power to declare a national emergency with almost no limitation as to what could constitute an emergency, in a ham-handed attempt to limit the length of time such presidential emergency powers could last. Believe it or not, Trump will therefore win an initial court analysis based on that statute. It’s pretty shocking.
On the other hand, once the courts proceed, as they will, to the broader separation of powers and constitutional issues, there is a more important constitutional precedent, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), that was set when President Truman tried to seize the steel mills in order to control the economy. The Supreme Court slapped him down. Thankfully, that’s what will likely happen in this case, although as I note in a detailed explanation in my comment below, this is not at all certain.
Says Bruce Ackerman of Yale Law School:
For me, the money quote of this interesting piece is the last paragraph:
This is fancy legal language for the question that I hope every American is asking:
“When will our government remove this petty tyrant and his cabal from power?”
With regard to Charley’s comment quoting Yale Law Professor Ackerman, I have never in all my life seen such chaos in legal circles over a question or issue.
My source was Elizabeth Goitein of NYU’s Brennan Center for Justice, who appeared on yesterday’s PBS NewsHour.
She was emphatic about the almost unlimited discretion the President has under 50 U.S.C. § 1601–1651 to decide what is and what is not an emergency. That is one terrifying part.
(My reading of the statute is that there is at least a very slight reassurance in the statute that the declaration has to be “during the period of a national emergency”, but this is a slim reed indeed when there is zero guidance in the statute as to what would constitute a national emergency. This is what is so problematic in the threshold matter of statutory interpretation that will occur in any challenge to the ‘President’. )
The other terrifying part is that some of the over 130 powers the President can invoke include the power to freeze private citizen’s bank accounts, which is more chilling than the (also available) power to spend otherwise appropriated defense funds on “construction” of his choosing necessary to address the emergency.
But I was not surprised at all to read the Ackerman quote, because the prevailing constitutional case law on a President’s unilateral seizing of property is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), which held that the President did not have the “inherent authority” to seize private property in the absence of either specifically enumerated authority under Article Two of the Constitution or statutory authority conferred on him by Congress.
So most lawyers’ immediate instinct would be to conclude that such an emergency declaration would like run headlong into Youngstown.
The problem with this is the third terrifying aspect of this question, the final words of the holding in Youngstown: “or statutory authority conferred on him by Congress.”
Unfortunately, Congres DID confer that statutory authority in its foolishly drafted 1976 statute.
(Ironically the 1976 statute was drafted to prevent Presidential emergency powers from being indefinite in length.)
The statute, however, gives the President up to six months without having to revisit Congressional authorization at all, although it also makes clear that a joint resolution of Congress can be passed to limit the power, which obviously would require a 2/3 majority assuming the President’s likely veto.
With the recent packing of the courts, we may be in trouble.
The more I think about this, the more I think there are times a bit of flexibility might be in order, as for an actual disaster of some sort, but that Trump is doing what he does best and we are falling for it. He is trolling us by using sensational words like “national emergency” then laughs as we all react in horror that this is just another piece of evidence that he is a wannabe tyrant whereas in reality states of emergency are declared with some regularity to free up federal money to get to where it is needed quickly.
Mr. Trump is fabricating a “disaster” in order to seize power.
What makes you think he’s any less likely to do that (and then abuse it) than seize a woman’s private parts? This is a man who bragged about buying a beauty pageant so that he could violate teenage women in their dressing rooms — and some Americans voted for him because of (or in spite of) that. Multiple teenage contestants said he did exactly what he bragged about — yet he is still President. So much for #metoo.
The government is already shut down. The EPA is already being dismantled, along with the FDA, the Consumer Finance Protection agency, and a host of others. He already abruptly canceled the annual joint military exercises with South Korea (they were resumed in November when cooler heads prevailed). The evidence of the pervasive corruption of he and his family mounts daily.
We are weeks away from taking away food stamps from tens of millions of our least fortunate citizens (48% of whom are white, BTW — a statistic that our mainstream media is loathe to publicize, since the mythology that SNAP recipients are mostly urban blacks is so attractive to advertisers and their audience).
Just how bad does it have to get before you’ll admit that we are in the midst of a collapse of our much-vaunted system of checks and balances?
Didn’t we just elect an opposition House? Our previous Congress fell down on the job, but our Constitutional structure is still sound.
It remains to be seen whether our newly-elected opposition House even attempts to do anything whatsoever.
Our Constitutional structure remains unchanged, and the traitors, thugs, and mobsters who run our government remain in place and unchecked.
Unchanged is different from effective. A breached flood barrier that remains unchanged as seawater overwhelms the area it is intended to protect is failed, whether or not it is “sound”.
Stump is a LOSER because he fails Richard Neustadt’s test : “The most important presidential power is the power to persuade.”
Boy are you cynical! The House has already started to introduce legislation and open investigations designed to get us back on track.
@ cynical: The House has passed legislation that doesn’t have a prayer of becoming law anytime soon. I think the GOP Senators are, sadly, entirely correct when they observe that the likelihood of 13 or more GOP Senators joining the Democratic minority in the Senate is vanishingly small.
Even if they do, how do you think the required supermajority will be achieved to override a certain veto?
I’m glad that the investigations are opened. Nevertheless, I don’t see the removal of Mr. Trump and Mr. Pence happening anytime in the foreseeable future, except perhaps in the 2020 election.
The damage is being done right now, each and every day that these treasonous thugs remain in power. I don’t see how anything you’ve mentioned has any actual impact at all.
You are talking about band-aids, when immediate tourniquets are required. We are bleeding to death, and our Constitutional structure is doing absolutely nothing to stop it.
What are you advocating?
@ What are you advocating:
I’m not sure. I think there is more than enough evidence to remove Mr. Trump and Mr. Pence from office immediately, based on what is already known.
I get that the various investigations must run their course, and the Congress must act accordingly. I fear that it is already too late — I fear that the damage already being done is irreversible.
I’m not betting on removal either, but investigations will give more publicity and the House certainly isn’t going to roll over for what Trump wants either, and THEY hold the power of the purse.
@ They hold the power of the purse:
If that were actually true, this shutdown would already be over.
The House cannot force a majority or supermajority in the Senate. The Democrats do not hold and are not close to holding a supermajority in the House.
The power of the purpose is meaningless while a Republican administration can fund and not fund whatever it chooses as the House passes cosmetic “legislation” that has no chance of becoming law.
Should be “The power of the purse …”
But there is only so much a President can do if money is not appropriated and all it takes is one House to stop a lot of the worst stuff. I don’t expect Dems to accomplish much positive, but they can stop the negative and show Americans how they would do things if given more of the government.
Hmm. Can you enumerate some things the House can stop? I’m glad that some investigations can finally be either resumed or initiated — is there ANYTHING that can be accomplished, though?
Can the House restore the clean water regulations? How about the clean air regulations? Climate change regulations? Consumer protections? Too-big-to-fail bank restrictions?
Americans have already made up their minds about this issue, Mr. Trump and the Trumpists long ago stopped trying to move public opinion.
In my view, it is transparently obvious that Mr. Trump and the Trumpists have realized that Americans have rejected their agenda, and have therefore decided to pursue that agenda unilaterally while offering an uplifted middle finger to anyone who opposes it.
You seem to be unsure which question you want to ask. If it is really what can the House stop then my answer is everything that requires legislation, and especially money. Surely you know that for something new to happen it requires the concurrence of House, Senate, and POTUS. Before Trump could come to Congress and state what he wanted and both chambers would snap to attention. Now if he does that there is one chamber that says not so fast. If your question is really what can the House unilaterally reverse then the answer is very little, though they might be able to leverage their power over other things to make at least some of that happen too. We did not get into this mess overnight and won’t get out of it overnight either.
What you don’t seem to appreciate is the inability of Congress to actually STOP the executive branch from doing something it chooses to do, especially when the Senate refuses to even consider attempts by the House to do so. The concurrence of the House is required only if the executive branch chooses to obey the obvious law.
We learned during the Reagan-Bush era that just because Congress says that the US will not fight a war in Central America, the executive branch can do so anyway. Congress said “No”, Reagan/Bush conducted the war anyway, and there were never any consequences.
That lesson is not lost on Mr. Trump and today’s GOP.
To stop something the Senate doesn’t have to consider concurring with the House. The House simply has to not pass legislation allowing something to move forward. However, the country DID survive the Reagan-Bush shenanigans you mention and we DID just elect an opposition House which WAS duly seated last week. Regardless of how effective you think having just one chamber might be, I have interpreted your comments (and feel free to correct me if this is a misunderstanding on my part) to suggest that we are on the verge of outlawing and censoring any opposition and an election contrary to WH preferences proves that is not the case. The United States has a proud 230-year tradition of regular and legitimately contested elections which were not interrupted for Civil War, Great Depression, or World Wars. We have not only survived crises which may well have been the undoing of lessor nations, but have arguably come out stronger. I really think we can take a bit of credit.
I don’t doubt that some form of government will survive.
I fear that we are entering a period of actual tyranny, when free speech will be suppressed and almost everyone will be poor.
It isn’t that I think we’re about to outlaw opposition. I instead fear that we are making that opposition absolutely powerless and utterly meaningless.
Multiple media outlets report today (10-Jan-2019) that Mr. Trump “probably, almost certainly, will declare a national emergency”:
We have a federal government that is shut down. We are on the verge of having a national emergency declared by Mr. Trump. Multiple sources point out that although the media focus has been on “the wall”, the “emergency” declaration will give Mr. Trump enormous power — including the ability to freeze individual bank accounts and turn off electronic communication.
All of this is a transparent effort to distract attention from the legal, political, and personal crises brought on by the pervasive corruption and moral bankruptcy of Mr. Trump and the GOP.
Is there ANY “red line” that even the Republicans will not allow Mr. Trump to cross?
Is the American experiment with democracy finished?
I really wish you would not be quite so pessimistic. Presidents declare emergencies to move funds quickly all the time and Trump is just trying to sensationalize it to see how we react and frankly I think you are playing into his hand a bit. Even if he signs some paper for show it will take months if not years before one shovelful of dirt is turned to start digging a foundation for his wall.
I really wish you would engage the reality of what’s happening.
Presidents do not routinely declare emergencies when there is no emergency.
I fear you continue to miss the point. Mr. Trump doesn’t care about the wall, that’s not what all this is about. By ALL reports, Mr. Trump instead sees the many investigations closing in on his family and himself. He cannot issue pardons for people guilty of violating state (rather than federal) law. His children have no immunity whatsoever. Mr. Trump is a desperate and insecure man, and this entire shutdown is an attempt to distract attention while he tries to find an increasingly unlikely escape.
If the threatened national emergency were only about the wall, I would agree with you. It will be well after the 2020 election before the very first shovelful of desert is disturbed even if all the court decisions support this deceitful charade.
It is all the other powers that a national emergency declaration grant Mr. Trump that each and every one of us should be concerned about.
He does not have those powers and wishing does not make it so. Our Constitution does not provide (as some national constitutions DO) for the type of emergency powers Trump bloviates about and his opponents fear. I agree its about an election, which is why I’m convinced its also mostly for show.
The New York Times disagrees with you, as does the Brennan Center.
For example, the latter cites (emphasis mine):
Say goodbye to CNN and MSNBC.
Regarding individual bank accounts (emphasis mine):
It really sounds as though you have not been reading the recent reporting of the Washington Post, New York Times, CNN, MSNBC, New Yorker, The Atlantic, and others regarding the extraordinary power that Congress has given the executive to handle “emergency” situations.
Again, from the second link (emphasis mine):
America has never had a President so eager to abuse power, nor a political party so eager to accommodate that abuse.
At least some of that should be obviously unconstitutional to a five year old (though maybe not to the man in the WH who acts like a five year old). The cable networks you cite do not operate on the airwaves that you mention. It wouldn’t be practical anyway. One thing gets shut down and then just pops up someplace else. The government would be engaging in history’s greatest game of whack-a-mole.
My point remains, however, that these regulations exist and were explicitly extended by Congress. I’m pretty sure that “wire communications” includes all internet transmission.
I agree with you that a functioning court with a five year old’s maturity would rather quickly rule at least some of these unconstitutional.
Still, that takes weeks, months, or years.
We are in the grips of an executive and GOP that wants to “win” at all cost.
I fear that Mr. Trump, Mr. Graham, Mr. McConnell, and the rest of them would LOVE to play high-profile whack-a-mole against “fake news” outlets and “Liberals” for years, while they continue grabbing everything they can in the meantime. They would be enthusiastically supported by their Fox-watching base (Fox would, of course, be unaffected by these actions).
I think it is very risky to rely on government to protect us when government is as compromised as it currently is. Government is, of course, our only option (mob rule is even worse).
I just fear that we are entering a dark age. I fear that the democratic freedoms that we enjoyed until only a few years ago are crumbling.