More on that national emergency vote
I’ve noticed—around the blogosphere in general as well as on some comments at yesterday’s thread about the twelve Republican senators who voted to block Trump’s declaration of a national emergency at the border—that quite a few people on the right are of the opinion that there was no excuse for voting against Trump’s declaration. The idea is that anyone who voted against what he did does not have the nation’s interests at heart, and that it’s clear and completely unequivocal that Trump’s declaration was totally legal.
I disagree somewhat. I happen to think that yes, Trump is allowed by law to do exactly what he did, and (as I wrote in yesterday’s post) that the correct action for Congress to take would be to repeal the act that gave him these powers, if they don’t like what he did. But they don’t want to do that, of course. Perhaps it’s too much work, perhaps it would be impossible to pass it, perhaps they want to keep the act in place so a future president can use it for things they want to see happen, perhaps all of the preceding. But that doesn’t change the fact that the correct approach would be to repeal the act and replace it with something more to their liking.
As for the legality of Trump’s declaration, Trump declared the national emergency under this act passed by Congress in 1976. Go to this previous post of mine and you’ll find a fairly lengthy discussion of how it works and whether his declaration conforms with that act. Here’s an excerpt:
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.
So, to summarize: I think that Trump has not exceeded his powers. But I also think that reasonable minds can differ on that, and furthermore it is a valid concern that this sets a bad precedent for future presidents to go further and actually exceed their powers. Then again, they don’t need Trump for that; they can do it quite handily on their own, and the way things are going, that will happen.
So those twelve Republican senators are neither crazy, nor secret Democrats, nor open borders advocates (although some are). Some are indeed classic RINOs who tend to vote with Democrats a lot of the time, but some generally are quite conservative (some are libertarian-leaning) and my sense is that they are sincerely interested in limiting presidential power. The horse may be long gone from the barn on limiting presidents, but I don’t think anything is served by declaring that these twelve are all part of a vast uniparty that’s the enemy of the people and of the right as a whole.
The real question is a philosophical/political one: if your opponent is going to fight dirty, how dirty must you fight in order to get ahead of him because you know he will do whatever it takes at the first opportunity? And is Trump really fighting dirty in this case by his national emergency declaration, or not? I think not, but I also think that reasonable minds can differ on that. And I think some of these senators have reasonable minds. But they just might be helping to hand victory to a party that has no such reservations about power and principle, and that is the big problem.
None of them are RINOs. RINO is a nonsense term. The Republican senators most troublesome for party whips are Susan Collins (R-Maine) and Sleaza Murkowski (R – Her Daddy). Both have higher lifetime scores from the American Conservative Union than any sitting Democrat and higher scores than those earned by Hugh Scott during the period running from 1971-76. Hugh Scott was the Senate Republican floor leader at that time.
Some of these people are of the libertarian / constitutionalist disposition but have lost sight of the relationship between ends and means. It’s a reasonable inference that most of these people are obtuse establishmentarians who live completely in their social matrices and tend to complain about people being ‘divisive’. The same sort of people land seats on this board and that board in your local community. They’re deadweight wherever they are.
Trump is not handing the Democrats anything. The power to declare a National Emergency is already there. Whatever Trump does now doesn’t bind any future President to anything.
“The real question is a philosophical/political one: if your opponent is going to fight dirty, how dirty must you fight in order to get ahead of him because you know he will do whatever it takes at the first opportunity?”
Ooooo, hang on to that musing in weighing college admissions/ GPA.
I agree, Neo, that some of these Republican Senators have voted on what they see as principle, and while I think Trump is authorized by statute to do what he’s doing, I can see their argument. Some of these expressed public disagreement with many of Obama’s executive orders which I, and they, thought were outside the law. Those, I respect. The ones who have been too willing to support illegal actions by Democratic presidents and to oppose legal actions by Trump, not so much.
Check the donors list.
As I wrote below, the crisis at the border is so clear cut, it is a crisis actually deserving to be labeled an “existential” one; our very existence as a country is being threatened.
Since, as has been pointed out, without a border—without a country—and, in a Republic, it’s citizens—having some level of control over immigration, over the extent of it’s territory and sovereignty, over who is a citizen and who is not, over who is entitled to all the protections of our Constitution and who is not, over who is subject to our laws and who is entitled to all the benefits due an actual citizen or not—a country ceases to be a country.
It becomes merely a free, all you can eat buffet, open to everyone in the world, but a “free” buffet that U.S. taxpayers and citizens end up having to pay for.
Thus, any member of Congress voting to make it impossible to erect a border Wall is failing in his or her fundamental duty to our country and its citizens; no Border, no Wall of some sort, no control, eventually, no country.
CaptainDMO:
That’s a pretty bad analogy.
First of all, that’s not MY reasoning, that’s the question everyone needs to ask. People answer it differently.
But secondly, getting into college is not quite the same as supposedly saving the country from what is seen as illegal and sometimes destructive and criminal “invaders” vs. protecting the Constitution.
Thirdly, most people who get into college do not cheat and/or pay people to cheat in order to accomplish it. They mostly follow the rules. And although you or anyone else might not agree with those rules or think they are fair, it’s not the same as breaking them.
Trump is following the rules, IMHO. But reasonable people can differ on that.
Check the donors list.
Mitt Romney is as rich as Croesus. Rob Portman is from a wealthy family, and would have entree into a handsome law partnership were he not in Congress. Eight of the twelve are vested for a federal pension and one of the four who isn’t is Romney, who needs no pension. Alexander, Romney, Wicker, Blunt, and Collins are over 65. Portman, Murkowski, and Moran will be over 65 ‘ere they have to face voters again. Cadging another term in Congress (much less fellating every donor you can between here and there) shouldn’t be such a motivator for these characters. The four younger members include Paul, Toomey, and Lee; it’s a reasonable wager these three are on-the-square with this vote. The fourth is Marco Rubio, who made it plain six years ago that immigration enforcement doesn’t interest him; his vote is consistent with past votes.
“I don’t think anything is served by declaring that these twelve are all part of a vast uniparty that’s the enemy of the people and of the right as a whole.”
Ah yes, the Trump years have surfaced all the useful idiots of the ‘Publicans.
It’s a reasonable inference that most of these people are obtuse establishmentarians who live completely in their social matrices and tend to complain about people being ‘divisive’.
I agree, I was most disappointed with Rand Paul but he does this. Romney ran like joining another country club,
Virtue signaling is more important to these 12, except Rubio who has a sugar daddy.
Rand Paul made his bones as a by-the-book hard-core libertarian; he’s come in for criticism over the last couple of years from some libertarians for becoming more of a Republican, but I think he’s still on the libertarian side of the spectrum. I imagine he honestly is for open borders … it can take awhile (like three or four decades) to see what, in the Real World, is wrong with that position.
Cf. his position on defense of the country. Unless he’s changed very recently, he’s a wait-until-they-invade type, or something close to it. And he’s another who wants more cuts to defense spending.
So I wouldn’t want to have to vote for him for President.
What this whole thing was about is that the GOP screwed Trump over on the wall and border enforcement for TWO YEARS when they controlled both the House and Senate. Which is why Trump was unwilling to go along with Mike Lee’s alternative bit of Kabuki theater which would have allowed Republican Senators to look like they’re supporting the wall to voters while simultaneously telling their Beltway peers they really don’t.
Trump didn’t want the wall/emergency issue to get tangled up in some non-deal where the Senate and the House can’t agree on legislation and everybody can blame everybody else while denying their own responsibllity.
Trump wanted the clarity of an up-or-down vote…and I suspect he also wanted to remind a lot of folks in DCZ that as long as he’s got 35 Senators backing him up, Trump still has enormous power over what is and isn’t going to happen.
Rand Paul made his bones as a by-the-book hard-core libertarian;
I think you’ve confused Rand Paul with his father. The son is not the conceited crank the father is.
Believe me, Art D., I’m well aware of the difference. But first, Ron has gotten more fixated on his favorite issues (“crank”-ier, if you must) over the last 30+ years; and second, Rand is younger and has a lot of growing still to do, but he’s still the son of Ron, and they have the libertarian outlook* on many things in common. I’ve been an Ayn Rand fellow-traveller (at least) and a fairly hard-core libertarian myself for my entire adult life, call it sixty years or so. For instance, I really only came to a mature understanding of the reason for having borders in the first place and the importance of taking them seriously in the last 20 years or so.
I don’t have them confused. Indeed, Rand has eased off at least a bit from what hard libertarians would like — as I mentioned above.
*Insofar as there is a “the” libertarian outlook. Libertarian beliefs are far from uniform, after all, except that they’re supposedly in favor of the Non-Aggression-Principle and the importance of individual liberty.
Rand is younger and has a lot of growing still to do,
He’s 55. He’s a finished product, bar what age is gonna to to him.
*Insofar as there is a “the” libertarian outlook. Libertarian beliefs are far from uniform,
That I’m aware of, and that’s my point. I’ve not seen any indication that Rand has much interest in his father’s crank monetary nostrums or his crank historiography, either.
Rand may just be a crank in his own unique way, like father like son. One hopes he doesn’t turn into a cranky maverick.
As regards what age may do to him, his neighbor tried to do a bit of adjusting to Rand. But Rand is a finished product so it must have had no effect.
This is an aspect of this crisis that isn’t well covered, but I think that its also pretty obvious that all sorts of Leftist agitators and organizations in Mexico, Central, and, for all I know, South America, and elsewhere–I’m sure anti-borders Soros and his money and organizations are involved here somewhere, and perhaps are even the main behind the scenes instigators and facilitators–are calling for/encouraging/facilitating an increasing assault on our borders by larger and larger numbers of people, and so called “caravans.”
If we were honest in naming this growing assault by tens of thousands of foreigners against or border, trying to break it down, overrun it, and to invade our country, this would be an Act of War.
Thus, building a Wall and strengthening those parts of the existing wall which are not doing the job are bedrock elements of any nation’s inherent right of self defense–to protect its sovereignty, it’s legitimate citizens, and its very existence.
As the Commander in Chief, I would think that the President, any President has an inherent duty, along with inherent powers, to make sure this most basic act of self defense is carried out.
Not to beat this to death, but some of us at least are not intellectually ossified by age 55. I’m more than 20 years older than that myself, and as I think I’ve suggested, my own views on various issues have changed over the last 20 years. They evolve as I gain ever more experience of life on the planet, and come to see where my understandings don’t entirely fit the facts. They also evolve as I find aspects of my core philosophy that have ramifications somewhat different from what I’d thought.
That doesn’t cause me to change my fundamental or bedrock beliefs, or understandings, or principles, whichever you prefer to call them: At the bottom of all that I believe, that has to do with social life — be it with individual relationships or with political policy — is that no one is born to be a slave. Stated differently, but requiring caveats, is the principle that no one has the right to interfere with the self-determination of another. No one has a right to a moment of someone else’s time, or effort, or attention. It is from this fact that the fundamental importance of property rights flows, and the realization that any decent public policy or political system must safeguard those at all, or almost all, cost — as long as the property isn’t used to usurp, even partially, the self-determination of someone else. To do that is, literally, to take from him his right to his own life as a human being.
.
This requires a lifetime of thought, to see what it entails in the abstract and in our real-world actions. I do not expect to quit seeing things from different angles and considering whether in view of those I need to change some of my opinions.
And by the way, scientific thought is not stopped dead at age 55. Mathematicians continue to investigate and produce new results, even if they become less likely to be blockbuster-new as the scientists ages. The same is true in physics, chemistry, biology. To the extent that our brains continue to function reasonably well, we continue to learn.
Rand Paul has many years of growth ahead of him — as do the rest of us, one hopes.
(If anybody cares, I do agree with many of Sen. Paul’s stated positions. Of course, the devil is in the details … which, to come full circle, is why continued intellectual growth in general is always to be hoped for.)
These individual Reps are mostly not RINOs, but do have some issues.
If Trump is building the Wall with or without their vote, it’s OK with me — and with most Rep voters. It’s actually something to be a bit proud of to support a Party of representatives, in the House and Senate, who are able to speak their own minds, and think their own thoughts.
It’s terrible that the Rep majority House under Paul Ryan failed (failed failed) to send Trump a budget with the money. Ryan was also not quite a RINO but very, very disappointing.
My guess is that Trump’s success in the Senate was far more important than losing the House — now, if (when?) Trump wins re-election, there will be more Trump Republicans.
More Wall, now — tho it’s OK if this is the key issue in 2020, too. Every death with an illegal immigrant perpetrator can be used against all the Dems running — they voted for killers to cross the unwalled border.
Has anybody got a counter argument to Snow on Pine?
Since his comment has been ignored, and the commentariot has moved to wack-a-mole statements about RINOs and Rand Paul indicates to me that the core topic of what is required to have a nation is an uncomfortable topic.
I am with Snow on Pine — no borders, no nation, and the dwindling fraction of this nation who actually pay taxes will be stuck with the free buffet bill.
Ryan was also not quite a RINO but very, very disappointing.
Prior to his turn in Congress, Paul Ryan was employed in political staff work, primarily for an outfit in the pedigree of FreedomWorks. He also worked for Jack Kemp. At the time, there was a contingent in starboard opinion journalism advocating open borders, Robert Bartley foremost among them. Kemp, Jude Wanninski, and Bartley were thick as thieves. It’s a reasonable wager Ryan’s an adherent to open borders as a matter of ideology. You’ll recall that Eric Cantor was knocked out in a primary by a challenger who stressed immigration enforcement. The reaction of the House Republican caucus to that whiff of grapeshot was to put Paul Ryan in charge when dipso Boehner decided he’d had enough. Heckuva job, GOP.
#fredocons
I am with Snow on Pine — no borders, no nation, and the dwindling fraction of this nation who actually pay taxes will be stuck with the free buffet bill.
The economic burden of sales and property taxes is apportioned between vendor and customer, i.e. everyone who purchases something or pays rent. That aside, every person who works on-the-books in this country is partially responsible for payroll taxes. What a large fraction of the population is dispensed from would be income taxes. Income taxes account for about 36% of all public revenue not derived from bond sales.
If you’re looking at someone whose personal income per capita (‘ere taxes and transfers) places them at the 30th percentile of the whole population, you’re looking at someone whose income flows might be 45% of national means. The mean for that 30% is more along the lines of 25% of national means and only a single-digit share of pre-tax income adheres to that segment of the population. It’s not surprising their income tax liability isn’t much.
Trump is acting well within the guidelines of the applicable law. And there is no doubt that there is an emergency at our southern border – the number of people trying to gain entry is significant and documented to have overwhelmed even our increased security presence there.
As for those Republicans that voted to pass the resolution negating Trump’s emergency declaration: I’m am convinced there are a few that truly have a principled objection to Trump’s exercise of legitimate power, but I also believe there are a few that know the resolution cannot overcome a Trump veto and so they could safely vote for it solely to signal opposition to their constituents. Yes, crassly political but understandable and commonly done, by both sides.
Steve beat me to the “virtue signaling” motive (we see it a lot where party whips “release” members to “vote their conscience” when ultimately it makes no difference; this comment by Neo’s is the more worrisome consideration especially in re Paul Rand and Marco Rubio, along with Collins & Murkowski.
It was also my biggest complaint against John McCain, and now (sigh) Mitt Romney.
Useful idiots are always in plentiful supply.
“I think some of these senators have reasonable minds. But they just might be helping to hand victory to a party that has no such reservations about power and principle, and that is the big problem.” – Neo
How about sometimes doing your virtue signalling to actually support your party’s majority of voters??
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