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Monday, January 07, 2019

Living in America

There is no Constitutional authority for the President to suspend Art. I of the Constitution, and the 5th Amendment to the Constitution.

There is no statutory authority for it, either.

Elizabeth Goitein is a bit worried Trump can take over the government with a flick of his pen (or crayon, to be more realistic):

Unknown to most Americans, a parallel legal regime allows the president to sidestep many of the constraints that normally apply. The moment the president declares a “national emergency”—a decision that is entirely within his discretion—more than 100 special provisions become available to him. While many of these tee up reasonable responses to genuine emergencies, some appear dangerously suited to a leader bent on amassing or retaining power. For instance, the president can, with the flick of his pen, activate laws allowing him to shut down many kinds of electronic communications inside the United States or freeze Americans’ bank accounts. Other powers are available even without a declaration of emergency, including laws that allow the president to deploy troops inside the country to subdue domestic unrest.

Interestingly, she mentions the historical precedents of the suspension of habeas corpus (5th Amendment) under Lincoln during the Civil War and  the internment of the Japanese during WWII by FDR.  Truman tried to seize the steel mills, but the Supreme Court shut him down.  We have no crisis similar to those times (all 3 Presidents had wars to deal with), and none of those actions involved suspending Congress' power to raise and spend monies, or the right of citizens to demand compensation for government taking of real property (usually known as "eminent domain"). Little observed fact:  the majority of the property on the border in Texas (the state with the longest border with Mexico in the Union) is private property.  Building a wall, or any structure, on that property would invoke the "takings clause" of the 5th Amendment.  There is no Constitutional nor statutory provision that allows the President to suspend the entire Constitution, or the 5th Amendment specifically.  (The Constitution does allow for habeas corpus to be suspended, which is what Lincoln did.  The Art. 1, Sec. 9, clause 2, allows suspension in time of rebellion, which certainly qualified then.  Amendment 5 doesn't allow for eminent domain proceedings to be suspended, which is what Trump would need to do).  Gotein's argument really has no application here, since she's worried about troops imposing martial law and the internet being shut down, neither of which Trump is threatening at the moment.  Still, the argument muddies the waters over what "emergency powers" Trump can assert, especially since you can always find a law professor to say Trump might be able to carry out his threat.

Depending, of course, on what his threat actually is.  There is also no provision in law or the Constitution that allows Trump to usurp the power of Congress to allocate funds.  There is a sliver of an argument that he could use DOD funds.  But that assumes they have an idea what to do with the money. They don't.   The argument also assumes Trump really wants the money; he doesn't.  He just wants a way to declare victory.  (Consider how many times he's tweeted that the wall was being built already.  He's shut down the government because those lies are no longer operative, and he needs a new one.).  There is, to repeat, no legal basis for suspending the "takings clause" of the 5th Amendment, and certainly no facts on which to find sufficient "crisis" to do so anyway.

Trump is an idiot, and his staff, as Jennifer Rubin labeled them, is the "D-team" (case in point).  She is right, though; any attempt to assert a "national emergency" to start border wall construction would be an impeachable offense. It would certainly be the action described by Josh Marshall. Does that mean anything?

And yes, he could declare an "emergency" just to declare victory:

Whatever happens, this is government by farce.


What Smith said was an "emergency" was declared to construct some bases in Afghanistan and Iraq; he compared that to building the wall on the border.  It's an inapt comparison.  When the military is in harm's way and needs protection, that can be considered an "emergency" which allows for non-allocated funds to be diverted to meet a very human need.  Wall construction on the border will take years, and there is no similar military emergency.  It is not needed to protect lives right now, and without such exigent circumstances, its construction as a "national emergency" can't possibly be justified.  I think Eric Columbus is right; Trump will make the declaration, it will go straight to court, Trump will declare victory and announce the war is under construction, and he'll go back to playing golf.


Blogger The Thought Criminal said...

If Nancy Pelosi and the Democrats in the House hold firm they might just keep us from having an absolute monarch. If not, it's over.

3:18 PM  

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