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Wednesday, January 09, 2019

Return to Gone Away Dept.

I can't quit this because stuff keeps bouncing up, mostly from non-lawyers who don't understand how to read a statute.  Take this, for example:

"We can call a national emergency. I may do it. We can call a national emergency and build it very quickly," Trump stated during a briefing in the Rose Garden following a lengthy sit-down with with Democrats over border security. "Under the military version of eminent domain and under homeland security, we can do it."

"You have to use eminent domain," he added. "If we had one person that wouldn't sell us...then we wouldn't be able to build proper border security because we'd have that big opening."

Trump isn't totally wrong. While the federal government has invoked the principle of eminent domain to build public utilities like roads and highways for decades, the "military version" Trump mentioned likely refers to 10 U.S. Code § 2663, which provides for the acquisition of land for military purposes including "construction, or operation of fortifications, coast defenses, or military training camps."

But at the same time, there are two elements here which may complicate this approach to expediting the construction of a border wall.

Neither of the "elements" mentioned in that last sentence include the 5th Amendment or the actual language of 10 U.S. Code § 2663 (and yes, Trump is totally wrong, as we shall see).  What that statue actually provides is for certain military officials to start eminent domain proceedings under the 5th Amendment:

Subject to subsection (f), the Secretary of a military department may have proceedings brought in the name of the United States, in a court of proper jurisdiction, to acquire by condemnation any interest in land, including temporary use, needed for—
(A) the site, construction, or operation of fortifications, coast defenses, or military training camps;
(B) the construction and operation of plants for the production of nitrate and other compounds, and the manufacture of explosives or other munitions of war; or
(C) the development and transmission of power for the operation of plants under subparagraph (B

Not really that striking a provision, since there has to be some implementing legislation to let some government official or agency acquire property for government use; this is the one for the military.  I don't think you can even remotely call the proposed wall a "fortification," but set that aside.  The important language is in the opening sentence:  "may have proceedings a court of proper jurisdiction, to acquire by condemnation any interest in land...."  That's the 5th Amendment at work, not the 5th Amendment abrogated.  There is, in that section, a provision Trump might think refers to national security:

In time of war or when war is imminent, the United States may, immediately upon the filing of a petition for condemnation under paragraph (1), take and use the land to the extent of the interest sought to be acquired.
But are we at war with Mexico?  Is war with Mexico imminent?  If not, there's an abuse of power problem in using this statute to build the wall.  And then there's subsection d):

(d)Acquisition of Interests in Land When Need Is Urgent.—
(1) The Secretary of a military department may acquire any interest in land in any case in which the Secretary determines that—
(A) the acquisition is needed in the interest of national defense;
(B) the acquisition is required to maintain the operational integrity of a military installation; and
(C) considerations of urgency do not permit the delay necessary to include the required acquisition in an annual Military Construction Authorization Act.
(2) Not later than 10 days after the date on which the Secretary of a military department determines to acquire an interest in land under the authority of this subsection, the Secretary shall submit, in an electronic medium pursuant to section 480 of this title, to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a notice containing a description of the property and interest to be acquired and the reasons for the acquisition.
(3) Appropriations available for military construction may be used for the purposes of this subsection.
 But, you see, you need both "national defense", "operational integrity of a military installation," and "considerations of urgency" which just don't apply here; so we're back to that abuse of power issue, and besides, the House committees would explode over this.  And Congress has made sure it has to be involved:

(f)Advance Notice of Use of Condemnation.—
(1) Before commencing any legal proceeding to acquire any interest in land under subsection (a), including acquisition for temporary use, by condemnation, eminent domain, or seizure, the Secretary of the military department concerned shall—
(A) pursue, to the maximum extent practicable, all other available options for the acquisition or use of the land, such as the purchase of an easement or the execution of a land exchange; and
(B) submit to the congressional defense committees a report containing—
(i) a description of the land to be acquired;
(ii) a certification that negotiations with the owner or owners of the land occurred, and that the Secretary tendered consideration in an amount equal to the fair market value of the land, as determined by the Secretary; and
(iii) an explanation of the other approaches considered for acquiring use of the land, the reasons for the acquisition of the land, and the reasons why alternative acquisition strategies are inadequate.
(2) The Secretary concerned may have proceedings brought in the name of the United States to acquire the land after the end of the 21-day period beginning on the date on which the report is received by the committees in an electronic medium pursuant to section 480 of this title.
So, just from reading this statute, I don't see how Trump can claim he has authority to declare a national emergency and get his wall.  It wouldn't be just a political problem (though it would be a huge one), it would be a legal issue, and not just in the sense of a court issuing an injunction.  It would be a gross abuse of power which even GOP Senators would have a big problem overlooking.  Parallels to Watergate suddenly become applicable here. It would be Trump's White House tapes, his John Dean, his Saturday Night Massacre (which was preceded by the forced resignation of Vice President Agnew, by only 10 days), all at once.  It would break the hold Trump has in the Senate, and plunge his administration straight down the precipice.

There is another option:  the National Emergencies Act, which reads in pertinent part (it's pretty short anyway):

(a) In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.

(b) When a decision is made to undertake military construction projects authorized by this section, the Secretary of Defense shall notify, in an electronic medium pursuant to section 480 of this title, the appropriate committees of Congress of the decision and of the estimated cost of the construction projects, including the cost of any real estate action pertaining to those construction projects.
That's no more useful than the previous statute.  Is there a "national emergency" on the border which "requires the use of the armed forces"?  Nope.  And all the statue does is "authorize the Secretaries of the military departments to undertake military construction projects...that are necessary to support such use of the armed forces."  How does a border wall do that?

And the sharp-eyed will note this statute specifically doesn't allow for land acquisition, which puts us back on the previous statute in emergency situations.

This is what some are talking about when the speak of the military being caught between a Presidential order and the law, because you will note that statute gives authority to "Secretaries of the military departments."  A Trump Cabinet appointee (SecDef) might pass the order on; lower level Secretaries might balk at this interpretation of the law, and refuse.  Any declaration of a "national emergency" would make the Saturday Night Massacre look like tea with the Queen.

Does that mean he won't do it?  Well, if he sees those consequences; and through some low animal cunning, he may.  But can he declare a national emergency, squirt the squid ink, and get away with it to remain an incompetent boob for another two years in an office he no more understands than a house pet?  No, I don't think so.  The laws aren't that vague and general, and the legal posture of such a declaration is not the same thing as hand-waving and citing some unfounded anecdotes that are completely fictional anyway.

This would be reality, hard and cold and implacable.  No Oval Office speech would change that.


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