Yesterday’s announcement by Mr. Donald J. Trump that he is declaring a national emergency on the southern border is just one more step towards creating the autocracy that he so desperately wants to have. After two years of total Republican control, and no “big, beautiful wall,” and no money from Mexico, Mr. Trump puts our Constitution in danger in order to shore up his political standing with his base. An overblown statement on my part? I think not.
As I have written in this space before, one may believe that we do or do not need a border wall, but the facts remain the same. There is no crisis on the border and a wall is not going to stop the flow of people or drugs into this country. You can look it up as I did in my previous piece using the statistics from Mr. Trump’s own administration. Mr. Trump, as usual, makes up his own statistics in order to make a case that his own administration cannot make. But the Constitutional issue is bigger than Mr. Trump’s usual panoply of lies.
The law that the president is using to justify his declaration is known as the National Emergencies Act (NEA) signed into law by President Gerald Ford in September 1976. Ironically, it was intended to end the abuse of the presidential power to declare a national emergency for just any political purpose. Enacted as a reaction to the Watergate scandal the intent was to eliminate the opportunity for presidential abuse of power to protect themselves from political scandal. The law itself is quite complicated. Its originators tried to tie together the elements of presidential prerogative to specific situations covered under existing laws. Without going too far into the weeds, Mr. Trump is using Department of Defense funds for his wall because of an existing statute that allows for redistribution of funds for the protection of military personnel on assigned missions. There are military personnel on the border — ordered there by Mr. Trump but in purely supportive positions — and thus he argues that the wall will protect those troops. It is a complicated interpretation of the law, but as I am not a legislative assistant nor an attorney, I will leave it at that. The point is that the president cannot just wake up one morning and declare an emergency for the fun of it — or at least until now it was thought that they could not — rather, the actions taken under a national emergency must be justified on the basis of existing law.
The DOD funds are primarily from military construction funds and intended for use in improving military support infrastructure, restoring hurricane damage to bases in North Carolina and Florida and other projects. Ironically, some of the money will come from a fund used by DOD for counter-drug operations. In all he is misappropriating over six billion dollars of DOD funds.
The act has been used 59 times over the years by various presidents. Most instances were to impose sanctions on a bad actor overseas, such as to inhibit a dictator from killing his own people. One was declared after Iraq invaded Kuwait and another after the terrorist attacks of September 11th. It was these types of acts that the legislation envisioned giving the president the ability to act quickly in a crisis. Most importantly, none of those previous declarations directly or indirectly circumvented the intent of Congress. This one does. The president is directly challenging the power of Congress to control funding for the first time under this provision.
That is why I believe his declaration to be a threat to the Constitution. A bicameral and bipartisan committee came up with legislation to fund the government that included roughly 1.375 billion dollars for Mr. Trump’s wall. The bill passed with veto proof margins in both houses of Congress. That should be the end of the discussion for this year. If Mr. Trump wanted more money in the future, he could work with Congress to add more money in those spending bills. However, in a fit of pique that he got less money this year than he would have gotten if he had not shut down the government for 35 days — and way less than the 25 billion dollars that Congress was willing to give him a year ago in exchange for protecting the “Dreamers” — the “greatest deal maker in the world” declared a national emergency to build a monument to himself and to bolster his chances in the 2020 presidential election. But don’t take my word for it, take his. Besides having talked about a “national emergency” for months and trying to use it as a threat to get Congress to give him more money, yesterday in response to reporter’s questions about why he did not just continue to work with Congress under normal appropriation and authorization processes, he said, “I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster.” Wow. So the president himself admitted that there is no national emergency, merely that he got tired of working with Congress and making slow progress, In other words he chose expediency over the national interest. He then went on to say, “And I don’t have to do it for the election. I’ve already done a lot of wall for the election. 2020. And the only reason we’re up here talking about this is because of the election…” Double wow.
So we have the President of the United States, invoking a national emergency, bypassing a bipartisan funding bill from the Congress, because he wants money to build a wall faster in order to appease his base for the 2020 election. That is one thing about Mr. Trump. He doesn’t hesitate to tell us when he is doing something shady.
In case you forgot, Article One, Section 9 of the Constitution says in part, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Article One enumerates the powers vested in Congress. Section 9 is the “power of the purse” reference that is the strongest element of the power invested in the Congress. Since the president cannot spend money except for specific purposes, the Congress can exert its power as a co-equal branch of government. Without that power in Congress, the president and his Cabinet could spend money on any enterprise they see fit without over sight or other input from Congress.
Besides Mr. Trump’s Banana Republic shenanigans in creating a non-existent crisis to deploy troops and to build a wall to stop a non-existent “invasion” (Autocracy 101 Playbook), Constitutional experts consider his actions to be a direct threat to the Article One powers of the Congress. He would set a precedent that any time a president has a pet project that the Congress will not fund, he or she could declare a national emergency and take money from one authorized project and use it on an unauthorized one. It is an unabashed abuse of presidential power.
How to stop it? The NEA of 1976 provides that opportunity. A 1985 amendment allows for a joint resolution of Congress to end the emergency. Again, without going into the weeds, it requires a simple majority in both Houses to overturn it. Provisions require a speedy vote so that legislative legerdemain cannot bury the issue. They must address it if a bill is brought forward. The president may veto the resolution, in which case the Congress must over ride the veto with a two-thirds majority in both Houses to end the emergency.
It is widely expected that such a bill will come forward in the Democrat controlled House of Representatives where it is expected to pass. The chances of the bill passing are less certain in the Republican controlled Senate. Speculation is that it would pass on a majority, but that the Senate would not over ride a veto. Keep in mind that the Senate Majority Leader Mitch McConnell (Trump-Ky) was against the president declaring an emergency before he was for it. Just a few days ago he was against it. Then on Thursday he took to the Senate floor to say that he supports it. So much for his reputation as an ardent supporter of the Constitution and the self-appointed protector of the Senate and their legislative powers. Perhaps he should re-label his position as the Senate Leading Enabler.
When the Congress fails to stop the madness, numerous court cases are likely to be filed. The basis of those cases will range from Constitutional separation of powers issues to eminent domain cases (it seems that most land owners along the border are not willing to give up their land for a meaningless wall). Whether or not the issue makes it to the Supreme Court is itself a question. The Supreme Court may consider this to be an issue between the other two branches of government, and they are historically loathe to make a decision that favors one or the other when it comes to delineated powers. They want them to solve it themselves, which seems logical since the Congress can pass laws to restrict or rescind the original Act, including the above voting procedure to end a national emergency. What is certain is that it will be working through the courts for months, possibly years, to come. The immediate question will be whether a court issues an injunction to stop any building of the wall using misappropriated funds while the court cases play out. And you can expect every brief opposing the action to begin with Mr. Trump’s statement that he didn’t need to do it.
In some ways this is an esoteric issue. In some ways it is a comedy of the absurd. It is hard to follow the nuances of the law and the Constitution. It gets complicated. Mr. Trump has a knack for putting things into black and white to try to make his points, even if he lies to do so. The country cannot afford to ignore him or to look away this time. To cut through the legalese, I’ll put it this way. The President of the United States is using a hoax to usurp the Constitution of the United States. He is making a pure power play that if allowed to stand will set a precedent for him, and future presidents, to act without restraint to achieve their purposes whether legitimate or not. It is the beginning of a president gaining unfettered power. This is not hyperbole on my part or an over reaction from those that are anti-Trump. Read up on your own, form your own opinion, but the consequences are not whether we build a wall. The issue is whether a president can skirt the law and get away with it. That should be of grave concern to anyone that believes that we should be a country of laws and that no one, not even the president, is above the Constitution.
(With a bow in the direction of Steve Schmidt, the former campaign manager for Senator John McCain’s presidential bid, for the title.)
Last night the president gave a speech to the nation about the alleged crisis on our southern border. Lots of figures and statistics continue to be thrown around to support the president’s desire to build a wall. Most are misleading or purposely distorted in order to support his campaign pledge. Whether you support the wall or not, here are the facts provided by Mr. Trump’s own administration and other independent sources. We can disagree on the best way to provide border security, but it should be a fact based discussion. With the emotion removed it becomes a different situation.
- Mexico will not pay for the wall. Claims that the new U.S., Mexico, Canada trade agreement (NAFTA by any other name with a few improvements) will result in Mexico “essentially” paying for it is false. Whether or not the new agreement changes the balance of trade between the U.S. and Mexico, that money does not go into the U.S. Treasury. And the U.S. Senate has yet to take up the new agreement so it is not in force. No time-table for ratification is set.
- 800,000 American federal workers are out of a pay check come Friday. There are hundreds of thousands of more American workers without pay checks that support the Federal government or that provide services to the government that are without pay checks and will not get back pay.
- Claims that the number of migrants crossing the border are unprecedented are wrong. According to the U.S. Border Patrol, there were 303,916 apprehensions at the border in 2017. That is the lowest in 45 years. In 2018 there were 396,579. A slight increase, but significantly lower than the 1.6 million apprehended in 2000.
- The southern border is not the primary way that undocumented immigrants enter the country. According to the Department of Homeland Security, in 2017, 606,926 people were in the country illegally by over staying their visas. That is roughly twice the number from the southern border. 101,281 of those who did not leave when their visa expired were from Canada.
- According to the U.S. State Department, “there was no credible evidence indicating that international terrorist groups have established bases in Mexico, worked with Mexican drug cartels, or sent operatives via Mexico into the United States.”
- According to the U.S. government, in 2017, 2,554 official encounters in the U.S. occurred with people on the terrorist watch list (which does not mean they are terrorists as it is often a case of mismatched names or other glitches). Of those, 2,170 attempted to enter through airports. NBC news reports, based on a DHS report to Congress, that the “roughly 4,000” terrorists cited by Trump Administration officials that were stopped were from around the world, not at the southern border. This includes stopping some before they get on an airplane overseas. Again this refers to people on the watch list, not necessarily actual terrorists. In the first half of 2018 exactly six immigrants were stopped at the southern border for being on the list. In the same time frame, forty-one were stopped at the Canadian border.
- Immigration and Customs Enforcement (ICE) personnel deported 5,872 suspected gang members in 2018. ICE does not break down which gangs these people belong to so it is impossible to know how many belong to MS-13. Additionally, some of those in the mix that were deported were not actually members of gangs. It is likely that the number of MS-13 gang-bangers arrested by ICE is in the hundreds. The total number of gang members deported in 2018 is less than one percent of those entering legally and then staying in the country illegally.
- Any murder or rape is a tragedy. Keep in mind that statistics consistently show that immigrants — legal or illegal — are far less likely to break the law than those born in the United States.
- According to the Drug Enforcement Agency (DEA) about 90% of the heroin entering the U.S. comes through Mexico. Frankly, no one knows exactly how much enters the country each year. However, DEA reports that the very large majority of it comes through legal ports of entry by land, sea and air.
- The vast majority of non-U.S. citizens attempting to enter the U.S. do so at legal ports of entry. Under U.S. and international law, those seeking asylum must be taken at their word that they are in danger of their lives, or persecution in their native lands until a hearing is held to adjudicate their claim. Not everyone crossing the southern border seeking asylum is granted it. Current administrative processes at the border result in extremely long wait times (it could be months) to enter through a port of entry. This induces desperate people to try to cross illegally and then to turn themselves in to authorities. This happens quite often and in peaceful ways. Whether the individuals entered legally or illegally, if they ask for asylum, under the law, they must be heard.
Here is my opinion.
What is really at stake is Article I of the Constitution. In what is known as the “vesting”clause, all legislative authority is given to the Congress, including appropriations and authorizations to spend money. Note that it comes before Article II that gives executive power to the president. Article III creates the judiciary.
In his first two years, Mr. Trump did not have a Congress that would put a check on his whims, desires and plans. Now he does with Democrats controlling the House of Representatives. On their part, the House is exercising their Constitutional power of the purse to establish that they are a co-equal branch of government and do not have to give in to the president on every issue. Frankly, it is about time. Missing in action is Senate Majority Leader Mitch McConnell (R-Ky) who got burned by the president’s promises in December and refuses to get involved to end the shutdown. It is likely that in short order (a few days to a week) Republican Senators will start to come over to the Democrat’s plan and Mr. McConnell will have to bring the Democrats’ bills to the floor to again pass what they already did just before Christmas.
Remember that the bills passed by the House last week are exactly the same as those already passed by the Republican controlled Senate. Because a new Congress was installed last week, all bills not passed by both Houses need to start over.
The government shutdown over the wall has nothing to do with border security. All sober government officials, Republican or Democrat, support border security. They differ on how our money and resources should be spent to protect and regulate the border.
The wall is a political stunt. The president backed himself into a corner and when a bipartisan deal was presented to him (including the bill passed in the Senate just before Christmas), after agreeing to it, he caved to right-wing pundits and proudly proclaimed that he would own the shutdown. That he and many of his advisers did not understand that when a shutdown goes into effect it means the government shuts down, hurting countless thousands of people across the country, is a story for another day.
It appears that there are three ways this situation can be resolved. Mr. Trump caves. The House and Senate get together and pass veto proof bills to fund the government. Finally, Mr. Trump may follow through on his threat to declare a National Emergency, mobilize the military and use Department of Defense funds to build his wall. This last move is that of an autocrat. It is Despot 101. Create a threat where one doesn’t exist, declare an emergency, mobilize the military, bypass the democratically elected legislature and take steps to curtail any opposition.
And all of it is based on a big lie. I cannot think of a more dangerous scenario.