Pelosi says a Democratic president could declare a national emergency, too, so you better watch out
[Hat tip: commenter “huxley.”]
Nancy Pelosi reacts:
Speaker Nancy Pelosi (D-Calif.) on Thursday issued a warning to Republicans poised to support President Trump’s decision to declare a national emergency at the southern border: the next Democratic president, she said, could do the same on guns.
“A Democratic president can declare emergencies, as well,” Pelosi told reporters in the Capitol. “So the precedent that the president is setting here is something that should be met with great unease and dismay by the Republicans.”
Oh, really?
First of all, a Democratic president certainly wouldn’t restrain him/herself from declaring a national emergency just because a Republican hadn’t done it yet.
Secondly, of course any president has the right to declare a national emergency, and many have done so already. The real questions are: (1) under what conditions can a president declare a national emergency; and (2) what is a president allowed to do when that emergency is declared?
So, let’s get some facts.
The power of a president to declare a national emergency is a statutory one, enacted in 1976 to supersede a previous hodge-podge. Such a declaration needs to be renewed annually to be in effect, and Congress can revoke it “with either a joint resolution and the President’s signature, or with a veto-proof majority vote.”
Prior to the passage of that National Emergencies Act:
…[P]residents [had] asserted the power to declare emergencies without limiting their scope or duration, without citing the relevant statutes, and without congressional oversight. The Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer limited what a president could do in such an emergency, but did not limit the emergency declaration power itself.
Since the signing of that bill, there have been 42 national emergencies declared; most of them limited trade in various ways in accord with another act of Congress.
Under what conditions can a national emergency be declared? It’s pretty broad:
The Act authorized the President to activate emergency provisions of law via an emergency declaration on the conditions that the President specifies the provisions so activated and notifies Congress.
There are certain exceptions, but they don’t apply to the current case (one, for example, is regulating transactions in foreign gold and silver}. But Pelosi’s rhetoric aside, there are also 136 enumerated and relatively specific powers granted, and you can find a list of them here (written in December of 2018):
Unknown to most Americans, a vast set of laws gives the president greatly enhanced powers during emergencies. President Donald Trump’s threats to bypass Congress and secure funding for a wall along the border with Mexico by declaring a national emergency are not just posturing. The Brennan Center, building on previous research, has identified 123 statutory powers that may become available to the president when de [sic] declares a national emergency, including two that might offer some legal cover for his wall-building ambitions (10 U.S.C. 2808 (a) and 33 U.S.C. 2293 on our list…).
Here is 10 U.S.C. 2808(a):
Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize Secretaries of the military departments to undertake military construction projects, that are necessary to support such use of the armed forces.
And the one I consider more relevant, 33 U.S.C. 2293:
Secretary of the Army may terminate or defer any Army civil works project and apply the resources, including funds, personnel, and equipment, of the Army’s civil works program to authorized civil works, military construction, and civil defense projects that are essential to the national defense, without regard to any other provision of law.
Looking at that, I think it’s relatively straightforward that the president has very broad powers to declare national emergencies and that what Trump proposes to do—if he uses the Army’s civil works program—might be fully legal under 33 U.S.C. 2293, if the argument is accepted that the wall is essential to the national defense or if it is found to be an “authorized civil work.” Naturally, there will be a legal challenge that the wall and the immigration situation is not the sort of immediate and threatening emergency that would justify such a declaration, and/or that it’s unnecessary for national defense and/or not an authorized civil work.
In addition, there’s the question of whether Trump can use the military to do this; here’s a discussion of that. Suffice to say the answer is “maybe,” and the issue is likely to be settled in court, as well.
And lastly, there is the question of obtaining the land for the wall through eminent domain (written January 7, 2019) [emphasis mine]:
The United States has a long tradition of authorizing the military to seize private land for a federal project…
…Congress has delegated the power to seize private property to many military branches, including the Army Corps of Engineers to construct military bases and the Department of Navy to acquire land for airfields and gunnery ranges…
If Congress passes a budget that includes Trump’s $5 billion in border wall funding, then technically it is possible that the Army Corps of Engineers could begin seizing land and constructing the wall…
One-third of the land is owned by the federal government, while the rest of the land is owned by states, private property owners or Native American tribes.
It occurs to me that the value of the bill that Trump signed today (in addition to its ending the shutdown issue for a while) is that it contains statutory authorization for the building of a wall, and therefore can help with the near-certain court fight over the eminent domain issue. Despite its restrictions and “poison pills,” its enactment means that Congress has authorized a wall and this may give the authority for the eminent domain taking.
The judiciary will be kept very very busy. For starters, I fully expect several circuit courts to enjoin part or all of Trump’s declaration, and then the Supreme Court may have to take up the overarching question of whether a circuit court can issue such an injuction for the entire country on matters of national importance. This is a question SCOTUS has ducked so far, but it may not be able to duck it for long.
The storm and drang around this, the hue and cry, are just beginning.
[NOTE: By the way, statements such as Pelosi’s, with its false equivalence, are wrong (although they are par for the course). As far as I can tell, and unlike building a public work for national defense—gun control is probably not something that can be fit into one of the presidential powers listed under the National Emergencies Act. In addition, if there’s not a controlling Congressional law authorizing the action, such as is in effect with bills authorizing the building of the border wall, that could be another problem for Pelosi’s plans.
Of course, where there’s a will, there may be a way. And in that sense—which may be the most practical sense of all—Pelosi is right. The National Emergencies Act, and its 136 provisions, can probably be effectively stretched by a president of either party, if conditions are right and especially if there is a simpatico SCOTUS majority in place:
In the past several decades, Congress has provided what the Constitution did not: emergency powers that have the potential for creating emergencies rather than ending them. Presidents have built on these powers with their own secret directives. What has prevented the wholesale abuse of these authorities until now is a baseline commitment to liberal democracy on the part of past presidents. Under a president who doesn’t share that commitment, what might we see?
I’m not so sure about that “baseline commitment” thing (see NOTE at the end of this post), at least not in recent decades, and even going quite far back. Lincoln was bitterly criticized for suspending habeas corpus during the Civil War, for example. Harry Truman lost a court battle to be allowed to seize the steel mills during the Korean War. President Obama expanded presidential power to do an end run around Congress via executive orders.]
A president who tried to enact a gun ban by declaration of an emergency would have a civil war pretty quickly. Right now sheriffs in eastern Washington are refusing to enforce a new Washington law about guns.
The Seattle Times thinks they could be liable but for what ?
County sheriffs who say they won’t enforce Washington’s new, stricter gun laws could be held liable if they refuse to perform enhanced background checks and someone who shouldn’t buy a gun is able to buy one and uses it in a crime, Washington Attorney General Bob Ferguson said on Tuesday.
In an open letter to law enforcement, Ferguson wrote that he was confident the wide-ranging law was constitutional and would withstand court challenges, but that he was concerned about threats — mostly from county sheriffs — to not enforce the new law.
At least 13 county sheriffs have said they won’t enforce the law, Initiative 1639, which voters passed by a wide margin in November.
They are pretty safe since, like all leftist gun laws, they are aimed at law abiding citizens.
In at least 13 mostly rural counties across Washington, from the Pacific Coast to the eastern wheat fields, county sheriffs have publicly pledged not to enforce the new law, known as Initiative 1639, citing their personal opposition to it.
“My job as a sheriff is to throw bad guys in jail, but it’s also to protect the constitutional rights of citizens of our county,” said Klickitat County Sheriff Bob Songer, who said he will not be enforcing the new law. “I follow the rule of law when I believe it’s constitutional.”
Sheriffs in Grays Harbor, Pacific, Mason, Kittitas, Yakima, Klickitat, Grant, Benton, Franklin, Adams, Lincoln, Ferry and Stevens counties — where majorities of voters opposed 1639 — have all said they will not enforce the new law.
In King County, which has close to three times as many voters as those 13 counties combined, 76 percent supported the ballot measure and Sheriff Mitzi Johanknecht co-wrote the argument in favor of it in the state voters’ guide. Last week, she said the initiative “can be refined,” but that it’s up to the courts to determine its constitutionality.
Eastern Washington State is like upstate New York. A totally different mind set. In the 1950s, there was a movement to secede.
The back-alley braying is that the left will go full conflation of logical domains and push the prophecy of Catastrophic Anthropogenic Global Warming beyond science, beyond philosophy, bordering on fantasy, and perhaps faith in the appointed mortal gods and models. In Stork They Trust.
That said, Democrats are now on record to oppose a Republican Form of Government and civil rights. It must be a living interpretation of our social compact under the Twilight Amendment. Eight trimesters and they still have the audacity to deem the baby not viable. Not to mention the collateral damage of immigration reform (e.g. anti-nativism) at both ends of the bridge and throughout. Mrs. Pelosi, tear down the walls… of the abortion chambers.
Mike K,
Yep, it’s really the Seattle area and then everywhere else in Washington. This stupid initiative will never stand in the current Supreme Court. It’s blatantly unconstitutional. I’ve been surprised actually that so many sheriffs have come out against it. I actually have a passing acquaintance to one of them and I admit I’m surprised he took a stand.
And absolutely if President Kamala tries a national emergency involving guns it would be very, very risky. Climate change though…
I was there in the late 50s when there was a pretty serious interest in secession. Everything east of the Cascades was to be the state of Lincoln. I don’t why it fizzled out.
Washington was a pretty dry state when I was there then. There was even an initiative to ban alcohol but the liquor industry diverted it to state liquor stores with the profits too go to the UW medical school.
Mike K
At one time it was going to be everything east of the Cascades in Washington, north of the Salmon River in Idaho and west of the Continental Divide in Montana. It was to be called Columbia. It would have been a great state to live in. The part I live in is still pretty darn good.
Nice post.
The word national means scope, and the word emergency is about timeliness or quickness. Concerning emergency, look at the chart of annual fentanyl deaths (blue curve) here. That’s very quick. Also, Pueblos Sin Fronteras is a very recent phenomenon. But a national security emergency is really about war powers and that’s covered in the Constitution (and by Neo).
How to define acts of war or war powers? If invaders flood into a country and maim and kill and rape large numbers of people, it’s a war or a type of war. What if invaders flood a country with addictive drugs, like the Brits did to China a century or so ago? I’d call that an act of war.
Nancy Pelosi can try to have her leader in a future White House declare gun violence a national emergency, and while there are many deaths involved there are not invaders involved.
(Unfortunately?) I think Neo is correct that Trump is using the legislated emergencies act and not war powers. I think he should use the latter and it would be justified. Note, war can imply killing the enemy, but also preventing being killed by the enemy.
_____
BTW, this clause in the new budget bill requiring local counties and the populace to decide whether they want a border wall in their community, was an issue that was forbidden by a court decision during the Obama era. I don’t recall any of the precise details, so I may be wrong. When illegals were flooding across the border during one of Obama’s years, some people in Texas or AZ took it upon themselves to block these people. A court found that all immigration issues were solely the province of the fed. gov. So Congress is illegally attempting to transfer or abrogate the fed. government’s sole responsibility.
“A president who tried to enact a gun ban by declaration of an emergency would have a civil war pretty quickly.” Mike K
The 2nd Amendment is the ‘tripwire’ to Civil War.
“Oppressors can tyrannize only when they achieve a standing army, an enslaved press, and a disarmed populace.” Pres. James Madison, ‘father’ of the U.S. Constitution
Trump’s use of National Emergency is not new — Dem Derangement opposition to Trump is what is new.
They will go to court to stop Trump.
Maybe the Reps will learn to use that go-to-court precedent next time there’s a Dem Pres, but it has to become a more Trump Rep party than the too many GOPe folk now there.
Whether Trump wins slowly or quickly in court, the key is to be really “fighting” so that in 2020 Trump supporters are not too discouraged. A national emergency that is held up in the courts for a year or so is almost perfect for Trump — a continuing re-election issue that is populist vs elite.
I’m pretty sure Trump would prefer to win the Wall sooner, but I suspect he’s fully prepared to make it the key reason to vote Trump, AND Rep (Trump Reps!), in the next election (already less than 2 years away).
If anyone had any illusions about what the Democrats really want to do–if they get into power again–Pilosi’s talk of a future Democrat President proclaiming a National Emergency as a way to restrict (read eliminate) the gun rights guaranteed to every citizen by the Second Amendment, her statement of the other day should have destroyed those illusions.
I’m hoping that Pilosi just shoved a whole lot of people (and their votes), who might have been sitting on the fence, over to the Conservative/Republican side.
TommyJay, are you thinking about Arizona’s SB 1070?
https://en.wikipedia.org/wiki/Arizona_SB_1070
Time, per Jefferson, to dissolve the political bonds. The usurption of individual liberties today is far more egregious than those that resulted in the Declaration. It can not be reconciled in the legislature or the courts. Both are corrupted, beyond reason and civil reconciliation. The ballot box is a fraud, so guess what is next?
Snow on Pine,
Dream on, the dumbing down has sunk to the Marianas Trench. Just ask AOC.
The dems have placed illegal immigration over the civil rights enshrined in the Second Amendment.
Let’s see where that takes them.
Of course, even if a whole lot of voters were persuaded by Pelosi’s statement to switch and vote “Republican,” would electing more supposed “Republicans” to Congress actually increase votes for conservative principles and programs, and mean passage of conservative legislation?
Because, is sure seems to me that very few of the so called “Republicans” in Congress are paying attention to the expressed needs and wishes of their constituents, are espousing conservative ideals, and proposing, fighting for, and passing conservative legislation.
Case in point, the former Republican Speaker of the House, our very own “aw shucks,” earnest, butter wouldn’t melt in his mouth, Howdy Doody, Paul Ryan, who repeatedly promised and campaigned on passing funding for the Wall but, when elected, refused to do so.
In fact, observing Ryan’s manner, his apparently sincere and guileless eyes, and listening to Ryan bloviate, you just knew that he was going to see to it that all sorts of conservative legislation was going to be churned out by Congress. Yet, other than the Tax Bill, nothing much happened.
And Ryan rode of into the sunset. Sure, I expect, of a book deal and cushy job prospects.
From the evidence, I don’t think that most—perhaps a majority of–Congressional Republicans are actually conservatives at all.
They say they are conservatives, they run as conservatives, but–once elected– they don’t legislate as conservatives. And, with few exceptions, they certainly don’t stand up to Democrats and vigorously and effectively argue against and fight their proposals and legislation.
See, for instance, yesterday’s passage of the new almost 1,600 page government funding bill, and the several Democrat provisions in it that would effectively hobble President Trump in his efforts to build the Wall.
Republican “negotiators” agreed to including that restrictive language as part of the bill.
Not too long ago, Republicans had control over the House, control over the Senate and, in Trump, had a nominally “Republican” President in the White House who was perhaps more of a centrist, but certainly not a leftist and, yet, given their control of the legislative process, other than the Senate’s confirmation of one Supreme Court Justice and many Trump nominated Judges (with many hundreds of other nominees still stuck in the pipeline thanks to Democrat obstruction) , Congressional Republicans did practically nothing to advance a conservative agenda.
Absent a real revolution–not some gaslight BS–I don’t see that changing any time soon.
Snow on Pine:
Maybe you missed this comment of mine:
I will add that Republicans had only two choices with this budget bill. They could pass it or they could have another shutdown. Trump had also made it crystal clear he didn’t want a shutdown. They didn’t want another shutdown. Not only would they and Trump be blamed for it, but if the budget bill—with authorization of at least some money for the wall—hadn’t been passed, there might have been a problem with the eminent domain part of building a wall. As it is, there will be legal challenges, but with this bill passed, Trump will have a stronger hand.
I explained that in this post.
I agree Tom, but then remember the Republican party is not known as the Stupid Party for nothing. I would hope that if Trump loses the executive order route on the border barrier then when Harris is Prez the Rep. would cram it down her throat just like what is happening now over the Judges. But I would not hold my breath.
What does it take to convince a minority (never does it take a majority) to shake off, through arms, the tyranny? Is that moment approaching, or will you placently surrender our arms and birthright? It is a simple question. How many here know how they will respond? My guess is less than 95%.
TommyJay on February 15, 2019 at 8:28 pm at 8:28 pm said:
…. A court found that all immigration issues were solely the province of the fed. gov. So Congress is illegally attempting to transfer or abrogate the fed. government’s sole responsibility.
* * *
An anti-poison-pill-pill?
Long way around the barn (Mike K to Chicago Boyz to Ace to this quote) but why can’t both sides play the same game?
(Well, because, The Stupid Party etc., BUT they could, in theory).
http://ace.mu.nu/archives/379815.php
“He told me that Democrats routinely build traps and poison pills into bills. Sometimes, for example, they’ll pretend to concede a legal point to Republicans, but then they’ll deliberately write the law in such an aggressive way that they know a liberal interest group will challenge it as unconstitutional and easily win, because it was written to be unconstitutional.”
Note that some courts are fudging, in that “immigration is solely the province of the Federal government “unless a state or city wants to exempt itself from enforcing immigration laws aka Sanctuary Whatevers.
Same theory as expressed here about the Washington Sheriffs:
Is there really any wonder that comity has declined?
Snow on Pine on February 15, 2019 at 8:29 pm at 8:29 pm said:
If anyone had any illusions about what the Democrats really want to do–if they get into power again–Pilosi’s talk of a future Democrat President proclaiming a National Emergency as a way to restrict (read eliminate) the gun rights guaranteed to every citizen by the Second Amendment, her statement of the other day should have destroyed those illusions.
I’m hoping that Pilosi just shoved a whole lot of people (and their votes), who might have been sitting on the fence, over to the Conservative/Republican side.
* * *
Artfldgr put that pretty well on the previous thread.
Artfldgr on February 15, 2019 at 7:28 pm at 7:28 pm said:
…
“But a Democratic president can do that.”
Then perfectly on cue without thinking – Rep. Emanuel Cleaver (D-Mo.) shared a tweet calling several issues championed by Democrats, such as climate change and income inequality, a “national emergency.”
Gun violence is a national emergency
Climate Change is a national emergency
Income inequality is a national emergency
Access to healthcare is a national emergency
Building a wall on the southern border is not.
…
How many smart people with any sense are reading the above and realizing, the next president may use their emergency powers to override foundational constitutional rights!!
“Pilosi’s talk of a future Democrat President proclaiming a National Emergency as a way to restrict (read eliminate) the gun rights guaranteed to every citizen by the Second Amendment” – Snow on Pine (my emphasis)
No sir. The inalienable right of the individual to bear arms expressed in the 2nd amendment is merely a formal acknowledgment in writing of a “self-evident” right, one that exists ‘apriori’ to the Constitution. “Inalienable” rights can only be granted by a creator that transcends mankind’s individual or collective opinions. Absent a creator, there can be no “inalienable rights”.
If the 2nd amendment itself is what ‘guarantees’ that ‘right’ then a majority of the citizens can amend the Constitution such that it effectively votes away our ‘rights’ revealing them to be privileges amenable to The Collective’s whim.
This is no small, ‘philosophical’ matter because ALL of our ‘rights’ hinge upon it.
First of all, “It is what it is” and now we do not have a shut down and yes the politics shifted the balance to the left, lots of stuff was given up. What I also see is Trump now having the ability, a year from now when the border situation is worse, to say, “I told you” so if crime is up and open border areas are a mess with more drug problems. Kind of like a doctor telling a person they are too heavy and if they don’t loss weight their diabetes will be worse and they are at risk of a heart attack and then a year later when the person is in the hospital with a heart attack and on insulin the doctor can remind the patient that it would have been better to lose weight.
Perhaps Trump will be able to run on “I told you so.”
Ah, the fabled wisdom and impartiality(snort) of our judiciary.
At SCOTUS, a handful of persons (9, if RBG is up to it) decide for all 330 million of us. But one man may not have his way, if 5 of those 9 so choose to oppose him. Five versus one!
We know that ALL humans are biased, and the Federal judges are in fact picked based on coherence of their views with those of POTUS and the Senate majority.
So we have looney judges and non-looney judges, and litigation will be filed in this case for a looney judge to rule, though it is totally clear pre-trial how he will rule. See Alcee Hastings, a former Federal district judge per Jimmy Carter, removed by impeachment for taking bribes. See the anti-Trump rulings by district judges in Hawaii and California…those were 1:1, and the judge wins???
One hell of away to run a country. No vox populi, none. Leads to ruin.
Haha. Only a few years late for those of us that said Hussien might do a Emergency thing, eh?
The 2nd Amendment is the ‘tripwire’ to Civil War.
Maybe. But there are many things which I know of that you do not. And which are not timely to discuss at this moment in time. People will figure it out in the end.
hint, look at California’s fires.
Hint: The Deep State does not need to defeat America’s arms although it is useful as a stalking horse. The reason is simple. They have technology centuries in advance of the latest US military tech. They don’t need pop guns to defeat you guys when they can obliterate your holds from the sky with no ability on your guerilla army to retaliate.
Unlike the US military or Israeli air force, The Deep State Will Not recognize civilian casualties. They don’t care. If they have the ability to carpet bomb all your cities, farms, and survivalist strongholds, GB… they will. And there’s nobody that can stop them, for now at least.
America’s popguns shooting in the sky will be very useful I am sure.
They have technology centuries in advance of the latest US military tech. They don’t need pop guns to defeat you guys when they can obliterate your holds from the sky with no ability on your guerilla army to retaliate.
Please get back on your meds.