Showing posts sorted by relevance for query emergency. Sort by date Show all posts
Showing posts sorted by relevance for query emergency. Sort by date Show all posts

Tuesday, January 29, 2019

Reading Law

Something there is that does not....


The problem with reading statutes is that what the statutes words say is not necessarily what the courts think those words say; or instantiate, to be a bit clearer.  We think of statutes as imprecatory and even as imperative:  the statute says it, and it is so.  But what the statute says is determined by the court, sometimes by the case before the court.  So, could Trump use the National Emergencies Act to build a border wall?

Probably not.  Elizabeth Goitein makes an interesting, but wholly non-legal, argument that Trump has dithered for so long he cannot now claim an "emergency" exists which Congress doesn't have time to act on and so Trump must.  Sounds interesting, but at no point does she ever cite a case where the courts have defined what an "emergency" is within the scope of the National Emergencies Act.  I think her thesis is fundamentally sound:

Trump no doubt thinks he looks more reasonable if he gives Congress plenty of time to act before declaring an emergency. He might also think that Congress’s repeated failure to provide funds shows the need for emergency action. The truth is the exact opposite. By giving Congress time to definitively establish its unwillingness to fund the border wall, Trump is both taking away any legitimate justification for emergency action and proving his intent to subvert the constitutional balance of powers.

But, to put the matter bluntly, that's a common sense argument, not a legal argument (and there's a reason legal arguments don't always track with common wisdom, but I can't belabor it now).  The court needs a bit more than "it's been too long" to go on.  I think the case is clear that Congress has chosen not to act on the President's demand, and he can't simply declare an emergency in order to get his way.  But will the courts agree?  No one can say; aside from the Youngstown case, I've yet to read an analysis that cites any relevant case law, especially cases directly regarding the National Emergencies Act (which post-dates Youngstown by a few decades).

But the National Emergencies Act is not itself a blanket dispensation of authority.  As Goitein points out:

The only powers the president can access during a national emergency are those Congress has granted. However potent some of these powers might be, the source of the president’s authority in all cases remains a legislative delegation—one that is granted in advance because true emergencies require immediate action. A president using emergency powers to thwart Congress’s will, in a situation where Congress has had ample time to express it, is like a doctor relying on an advance directive to deny life-saving treatment to a patient who is conscious and clearly asking to be saved.

Again, lovely analysis, but not really a keen legal argument.  Still, the point in the first sentence is sound:  the President only has the emergency powers the Congress grants; the President cannot grant himself the power to suspend Art. I, or Amendment 5, for that matter.  And the National Emergencies Act explicitly recognizes this, because there are laws the President cannot suspend under the terms of the Act:

(a) The provisions of this chapter shall not apply to the following provisions of law, the powers and authorities conferred thereby, and actions taken thereunder:
(1) Chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41;
(2) Section 3727(a)–(e)(1) of title 31;
(3) Section 6305 of title 41;
(4) Public Law 85–804 (Act of Aug. 28, 1958, 72 Stat. 972; 50 U.S.C. 1431 et seq.);
(5) Section 2304(a)(1) [1] of title 10; [2]

This is the pertinent part of the text of one of those provisions (50 USC 1431, to be exact):

The President may authorize any department or agency of the Government which exercises functions in connection with the national defense, acting in accordance with regulations prescribed by the President for the protection of the Government, to enter into contracts or into amendments or modifications of contracts heretofore or hereafter made and to make advance payments thereon, without regard to other provisions of law relating to the making, performance, amendment, or modification of contracts, whenever he deems that such action would facilitate the national defense. The authority conferred by this section shall not be utilized to obligate the United States in an amount in excess of $50,000 without approval by an official at or above the level of an Assistant Secretary or his Deputy, or an assistant head or his deputy, of such department or agency, or by a Contract Adjustment Board established therein. The authority conferred by this section may not be utilized to obligate the United States in any amount in excess of $25,000,000 unless the Committees on Armed Services of the Senate and the House of Representatives have been notified in writing of such proposed obligation and 60 days of continuous session of Congress have expired following the date on which such notice was transmitted to such Committees. For purposes of this section, the continuity of a session of Congress is broken only by an adjournment of the Congress sine die at the end of a Congress, and the days on which either House is not in session because of an adjournment of more than 3 days to a day certain, or because of an adjournment sine die other than at the end of a Congress, are excluded in the computation of such 60-day period. 

Sorry for the legalese, but the upshot is:  the President will have to declare the border wall to be a matter of national defense (is Mexico invading us?  Still, I can see the court declining to define that phrase narrowly); and cannot authorize contracts in excess of $25 million without notice to Congress and then the contracts (the language says "obligate" the US, not sign a single contract for that amount) and wait 60 days after that.  This is not a measure meant to be used only for emergencies, but neither can it be suspended on the declaration of an emergency.  And here is where the legal reasoning comes in.

A viable legal argument could be based on this provision of law, and the above provision of the National Emergencies Act, indicating there is no emergency because the wall itself is not a military necessity, and the President cannot enter into a contract to build it on an emergency basis.  If he has to wait 60 days (at least), he can't claim construction is needed immediately, because he can't start construction immediately (as a matter of law; he can't start construction immediately as a matter of fact, either, but the courts will probably be more comfortable with what the law does, or does not, allow).  If construction can't start the day of the declaration of emergency, and if Art. I establishes that Congress decides how to spend the money, then even if Trump says it must be done instanter, it can't be, as a matter of law; and so there is no legal reason to recognize a declaration of emergency under the circumstances, because the declaration would be seeking the power to enter into contracts post-haste, and that's a power explicitly excluded from the National Emergencies Act.  Which means the President can't use the Act to declare an emergency to get his wall built, or even started, or even planned (it has to be planned, first, though Trump talks as if his words will cause the wall to spring forth in a "Fiat Lux" manner), because he can't use the Act to bypass the authority Congress has already granted to enter into contracts on behalf of the federal government.  His declaration is, under the law, a nullity.

Off the top of my head that's an interesting legal argument, anyway.  Moving away from legalisms a moment, the situation of a government shutdown (or the debt ceiling, an issue added to the mix by the Senator from South Carolina) raises another question: if the government can't spend money (or borrow money) Congress hasn't authorized (hence a shutdown or a debt crisis, respectively), on what Constitutional theory can the President do so?

Just wondering....
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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.

Addendum:


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.
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Saturday, March 13, 2021

“Where’s The Fire?”

The legal analysis you get from me is worth the money you pay for it. But I think, as my Torts professor said lo those many decades ago now: “Change the facts, change the outcome.” And the facts have changed.

Abbott has statutory authority in an emergency to set the parameters of government response. The courts have held that authority supersedes local (county and city) authority. Which makes sense when the Governor is setting a uniform policy. But when the governor says the emergency has passed, by what authority does he still dictate what local authorities can do? Abbott’s ban on any county requiring masks seems to exceed both the statutory and constitutional powers of the governor of Texas.

There’s no question governments have broad powers to protect public health. That’s a bedrock Constitutional issue. Texas law authorizes such protections, and I don’t see where even the statute giving the Governor emergency powers makes the holder of that office a diktator in charge of all county and city officials (but not schools?). In other words, the legal issue during the emergency is: who decides? That’s during a statewide emergency. Abbott has now said that emergency has passed. So what authority does he have if Travis County says they perceive an emergency in their county, for their residents? If the statewide emergency has passed, what authority does the Governor now wield? He acts for the state, but the counties have separate legal authority. If he says there’s no emergency, how does he still rule them?

The judge denied Paxton’s request for a TRO because the two weeks until a hearing on a temporary injunction won’t cause irreparable harm to the State. I think already the solid legal grounds Paxton thought he stood on are getting sandy. I can’t pretend to know what the judge is thinking, or will think. But I think the facts have changed, and that should change the outcome. If the court doesn’t think there’s extreme urgency in this case, it could mean the court doesn’t think there’s an emergency any more, either.
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Sunday, January 18, 2026

🤣🤣🤣

Twitter is banjaxed again. Rupar has the video in his tweet, the embed now says “Not found.”  This supposedly works, though, as Bessent went on talking Welker in true Lewis Carroll style:
WELKER: You're saying it's a national emergency but you're also saying it's a threat that's years away. How can both be true?

BESSENT: Because you're avoiding creating the emergency

WELKER: Do you think the Supreme Court will agree with that rationale?

BESSENT: I believe it's very unlikely the Supreme Court will overrule a president's signature economic policy
With a touch of droit de seigneur, because they’re scared to death the Supremes are going to take away their ball. (”It’s a potential emergency we must avoid by declaring an emergency prematurely” is not the flex they think it is.)
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Monday, August 26, 2019

You Can Build A Case



It’s Trump Doral, the President’s Florida golf course and resort, and from President Trump’s public comments today, it will host next year’s G7 Summit.

But President Trump hosting the G7 at one of his highest-grossing properties raises a host of issues that range from the Constitution’s Emoluments Clause – which prohibits the president from receiving things of value from foreign governments – to potential procurement regulations to a basic sense of propriety in government, attorneys and government ethics experts told TPM.

No shit, Sherlock:

“Whether or not it violates a specific law or diagnosis of law, it’s completely unethical for the president to use the G7 to profit his hotels and himself,” Larry Noble, a former FEC general counsel, told TPM. “The idea of leveraging your office to make money goes against the very concept of public service,” he said, adding that such acts are “normally a criminal violation.”

Kathleen Clark, a law professor at Washington University in St. Louis who focuses on government ethics, told TPM that there are two separate issues in play with the Doral G7: Trump “using the government’s power to line his pockets” by holding the summit at one of his properties, and a separate question around whether the foreign money that would flow to him would qualify as a foreign emolument.

Legal experts described the potential event – to be held at one of President Trump’s highest grossing properties – as a “monumental” emoluments issue, and one that is more acute than previous allegations in part because the President is using the influence of his office to stage an event from which he will profit.

“The president is essentially requiring [foreign officials] to enrich him through his Doral property,” Clark said.

And maybe it's sound and fury, signifying nothing more than contempt for, through ignorance of, what government service is supposed to mean:

Noble, the former FEC general counsel, told TPM that the government would “presumably have to go through a procurement process to find a resort.”

“It may violate contracting laws, or any sense of propriety,” Noble said. “He basically used the announcement to tout the benefit of the resort.”

But will Trump's staff find a way around that, as Mnuchin and Kudlow already think they've done?

These laws—like so many laws—are imperfect. But the primary fault here lies not with the law books but with Trump. Our laws of course could be better, but Trump’s breaking the ones we already have. What’s more, those laws were designed not to expand presidents’ emergency authority but to restrain it. So blaming them for Trump’s excesses fails to recognize that fewer checks on executive power would exist in their absence. There’s plenty of work ahead to reform federal statutes in light of lessons learned from the Trump era. Yet that task ahead shouldn’t distract us from the fierce urgency of now: calling out Trump’s actions as unlawful and, moreover, reining them in.

This analysis fits rather neatly into the "opposing view" TPM was able to dredge up from a Constitutional expert in Ireland (!):

Seth Tillman, a lecturer at Maynooth University in Ireland who has studied the issue, offered TPM an opposing view which aligned with that of Trump’s, arguing that the framers intended “emoluments” to be limited to “a benefit that extends to holding office” in a foreign state.

“It could be a conniving attempt to extract an unfair benefit, akin to a bribe – and I don’t believe that’s what the foreign emoluments clause is about,” Tillman said.

In his view, “the more general concern of self-dealing and bribery” is suited for the basis of an impeachment inquiry.

Which is really an elaborate way of saying nothing, but everything a President does that violates the law or the Constitution, or even the oath of office, is "suited for the basis of an impeachment inquiry."  The narrow reading of the emoluments clause might be a legal defense in such an inquiry, but it's hardly dispositive of the issue.  And the issue is this:

Whatever one thinks of the laws currently on the books, Trump is breaking them. Recall the proclamation that Trump issued in February to declare “a national emergency concerning the southern border of the United States.” It recounted a handful of long-standing facts concerning the southern border, then identified only a single recent change at the border: “Recent years have seen sharp increases in the number of family units entering and seeking entry to the United States.” It then proceeded to “declare that a national emergency exists at the southern border of the United States.” An increase in families entering the United States simply isn’t a “national emergency” of the type contemplated by the National Emergencies Act. It may present a hard policy challenge, but many things do. For Trump to insist that it’s a “national emergency” represents not statutory ambiguity but presidential lawlessness. And, indeed, we all know why Trump really invoked the NEA: because he failed to convince Congress to approve his wall funding.

And this entire conversation needs to conducted in this context and with this understanding:

A House report on the NEA emphasized that the proposed law was intended to restrain presidents’ invocation of national emergencies, not aggrandize it. The report noted that “there has been an emergency in one form or another for the last 43 years,” adding: “The history of continued and almost routine utilization of such emergency authorities for years after the original crisis has passed … serves only to emphasize the fact that there is an urgent need to provide adequate laws to meet our present day needs.” And a Senate report made clear the NEA’s purpose: “Enactment of this legislation would … insure that the extraordinary powers which now reside in the hands of the Chief Executive … could be utilized only when emergencies actually exist.” The genealogy of the IEEPA is similar, with its enactment intended, as one commentator has rightly summarized, “to restrict the president’s powers to declare an indefinite emergency during peacetime.”

So it’s critical to remember the baseline against which emergency laws like the NEA and the IEEPA were enacted: essentially uninhibited presidential invocation of national emergencies and executive branch actions in response. That’s what made these laws’ introduction of new requirements—such as the specification of particular emergencies, the expiration of old ones, the demand that new ones be recertified periodically or expire, and the reporting to Congress of each new emergency declared—collectively a step forward in reining in the exercise of presidential emergency authority.

The laws only work when they are enforced.  Oddly, I hear this argument a lot when it comes to "gun control."  One argument against further laws is that we don't enforce the ones we have.  It's a fair argument, but it underscores the problem with Trump.  Yes, we elected him, but we didn't suspend the rule of law and the strictures of the Constitution when we did so.  If there is a Constitutional crisis in the land, it's in the refusal of our elected officials to enforce the rule of law and uphold the concepts of the Constitution we've all agreed to (including but not limited to questioning basic concepts like birthright citizenship.)  When we've come to the point where law professors are defending the critique of that concept as one that is not inherently racist (yes, it is), is it any wonder 70% of Americans report they are angry with the established order of things?  Maybe that anger is aimed at the sense of betrayal of our collective inheritance more than it is the rages of white supremacists like Stephen Miller.

It isn't that the laws are weak; it's that they aren't being enforced.  Miller, through Trump, has even challenged Plyler v. Doe, the 1981 case that established a baseline definition of "equal protection of laws" which has been a powerful sleeper case ever since, but now because of racism and xenophobia in the highest office in the land, it is, like the 14th amendment on which it rests, now called into question.  You don't pull up the roots of the democratic republic like that without causing a great deal of upheaval, even if you can't chop those roots free and throw them on the fire as you wish to do.

"A government of laws, not of men."  Most people in America understand that concept; and even if they can't name their pain, they don't like seeing that concept trampled on.  It's what brought Nixon down; it's going to more decisively end Trump.  But not soon enough; and not without the expression, the insistence, of the governed that their government follow the law, not the man.



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Friday, February 15, 2019

More popcorn, please!


I heard an announcement of a program to be broadcast on local NPR tonight, with the guest noting that, instead of headlines "Trump Caves" and "Trump Loses Fight," the President now gets headlines "Trump Declares National Emergency."  So much better, for Trump:

Legal observers expect the courts to impose an injunction on this national-emergency declaration as soon as it is made. Indeed, the president made the judiciary’s work easier on Friday when he admitted that he “didn’t need to do this,” a confession that there is, in fact, no ongoing national emergency. A judicial quagmire is the GOP’s fondest hope. That way, Trump can say he’s fighting for his wall in every possible way, and Republicans in Congress can cede their authority to check the executive branch by insisting that the whole matter is out of their hands. And all without ever having to expropriate private property along the border or prove the dubious efficacy of a physical wall. Everybody wins!

And how bad is it?

Let’s not mince words: Backing Trump in this moment is not the prerogative of an institutionalist, which the majority leader claims to be. It is the prerogative of a partisan operator motivated, above all, by deference to a fleeting political imperative: avoiding another government shutdown.

This is a moment of extreme national cowardice. America’s governing institutions are abdicating their authority in pursuit of expedience and amid a craven scramble to save face. A precedent has been established that all Americans, but conservative Americans in particular, will long regret.

I wish that were true, but I doubt it. (I mean honestly, why do we have government shutdowns in the first place?  What "institutionalist" justifies that idiocy?)   No sane politicians is going to declare a "national emergency" and impose universal healthcare or strict gun controls or sweeping mandates to correct climate change (what, ground all airplanes?  Stop the sale of gasoline?  End all ranching and livestock production?).  Not only would it not work, it would be a political disaster.  Trump isn't really doing anything by declaring a national emergency; he's getting himself out of a box he put himself in.  Prime evidence of that?

McConnell knows that's bullshit, but he doesn't care!  Abdicating authority in pursuit of expedience has been the function of politicians in Washington since Congress began.  Forget all that high minded rhetoric about "Profiles in Courage" who stepped up to save the Republic from enemies within and without, it's horse shit.  This is the way the Republic works:  lurching from crisis to crisis, near-chaos to near-chaos, with the press occasionally announcing a "constitutional crisis" on the horizon (on that issue today?  Crickets; although this is as close to the real thing as we've been since it was revealed Nixon had an "enemies list.").  I expect that end the GOP anticipates (courts tie it up, nothing happens, everybody wins a perception award) is true.  I also expect it will do the GOP no good at all (I heard a political commentator this morning say this is bad for Democrats, who will have to fight 2020 on immigration, which they don't want to do.  I wondered where he was last November.  Commentary is commentary, but it is not all created equally.).

Me, I can't stop it, so I'm just gonna enjoy the shitshow.
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Wednesday, August 27, 2025

May You Live In Interesting Times

Professor Vladeck points out:
The application is significant not only on its own terms, but because of the new reality it appears to reflect—one in which the Trump administration seems to be structuring at least some of its litigation decisions specifically to take advantage of its expectation that it can receive emergency relief from the Supreme Court. Here, that behavior includes contriving the procedural emergency that the Solicitor General now claims justifies intervention by the justices; downplaying the fact that the government forfeited the substantive claim on which it claims it is likely to succeed on the merits—by not properly raising it below; and misrepresenting what happened in the lower courts by conveniently leaving out any details that might draw the justices’ (or their clerks’) attention to those first two points.

In ordinary times, either of those first two defects would (and should) be fatal to the prospects of receiving emergency relief from the Supreme Court. And yet, the government’s (especially strident) application insists that the real issue here isn’t its behavior, but that of the district court—which has, in its words, “installed itself as supervisor-in-chief of further spending and recissions proposals”—and the en banc D.C. Circuit, which it accuses of all-but deliberately sitting on its hands. As I demonstrate below, these claims are utterly belied by the record—and serve only to deflect attention from the government’s own responsibility for this latest “emergency.”

Given the justices’ dispositions of Trump administration applications over the past six months, it may not be surprising that the government thinks it can get away with this kind of behavior. The harder question is whether, in a case in which the government’s cynical attempt to so obviously manipulate the emergency docket is happening in plain sight, the justices will still indulge it.
The topic is a government application for emergency relief on an injunction, an appeal where the government failed to, let’s say, fill out the right forms in the right way. There are rules, to cut to the chase, and the Sinister Six is disregarding them to the extent the government is counting on them to continue to do so.

My mind goes back to the case of the adjunct coach whose contract was not renewed. (I taught as an adjunct for over a decade (seems odd to say), and I was subject to renewal every semester. It’s the life of an adjunct.) He claimed he was fired for holding prayer sessions after football games on the field. His claim was the only evidence of that, so Alito wrote a majority opinion that added facts to the record (completely illegal and against all the rules to do that, but it’s the Supreme Court, bitches!) so he could get the result he wanted.

Or, as Justice Jackson wrote in an opinion recently:
Just last week, I wrote about the requirements for granting stay applications and, in particular, how this Court’s emergency-docket practices were decoupling from the traditional harm-reduction justification for equitable stays. See Noem, 605 U. S., at ___ (slip op., at 5). With today’s decision, it seems as if the Court has truly lost its moorings. It interferes with the lower courts’ informed and equitable assessment of how the SSA’s data is best accessed during the course of this litigation, and it does so without any showing by the Government that it will actually suffer concrete or irreparable harm from having to comply with the District Court’s order.

[snip]

Stepping back to take a birds-eye view of the stay request before us, the Government’s failure to demonstrate harm should mean that the general equity balance tips decisively against granting a stay. See Noem, 605 U. S., at ___ (slip op., at 4). On the one hand, there is a repository of millions of Americans’ legally protected, highly sensitive information that—if improperly handled or disseminated—risks causing significant harm, as Congress has already recognized. On the other, there is the Government’s desire to ditch the usual protocols for accessing that data, before the courts have even determined whether DOGE’s access is lawful. In the first bucket, there is also the state of federal law, which enshrines privacy protections, and the President’s constitutional obligation to faithfully execute the laws Congress has passed. This makes it not at all clear that it is in the public’s interest for the SSA to give DOGE staffers unfettered access to all Americans’ non-anonymized data before its entitlement to such access has been established, especially when the SSA’s own employees have long been subject to restrictions meant to protect the American people.
And that was about the Sinister Six allowing DOGE to access SS data because, sure, why not? Yeah, DOGE didn’t just do that, the Supreme Court let them do that. Without review, briefing, or arguments. Basically without any consideration, and, as Justice Jackson points out, while running roughshod over the rules of equity; which is to say, basically, the rule of law.

This is that constitutional crisis the media keeps worrying about. And it’s going to raise a significant question: How many troops does the Supreme Court have?

Because it’s gonna come to that. Face it: the Court is busy throwing its legitimacy in the shredder.

What does that lead to?
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Sunday, November 03, 2024

“Do Something!”

Mmmm, could be.
Candace Fails screamed for someone in the Texas hospital to help her pregnant daughter. “Do something,” she pleaded, on the morning of Oct. 29, 2023. 
Nevaeh Crain was crying in pain, too weak to walk, blood staining her thighs. Feverish and vomiting the day of her baby shower, the 18-year-old had gone to two different emergency rooms within 12 hours, returning home each time worse than before. 
The first hospital diagnosed her with strep throat without investigating her sharp abdominal cramps. At the second, she screened positive for sepsis, a life-threatening and fast-moving reaction to an infection, medical records show. But doctors said her six-month fetus had a heartbeat and that Crain was fine to leave. 
Now on Crain’s third hospital visit, an obstetrician insisted on two ultrasounds to “confirm fetal demise,” a nurse wrote, before moving her to intensive care. 
By then, more than two hours after her arrival, Crain’s blood pressure had plummeted and a nurse had noted that her lips were “blue and dusky.” Her organs began failing. 
Hours later, she was dead.
Feature, not bug:
Texas Attorney General Ken Paxton has successfully made his state the only one in the country that isn’t required to follow the Biden administration’s efforts to ensure that emergency departments don’t turn away patients like Crain. 
After the U.S. Supreme Court overturned the constitutional right to abortion, the administration issued guidance on how states with bans should follow the Emergency Medical Treatment and Labor Act. The federal law requires hospitals that receive funding through Medicare — which is virtually all of them — to stabilize or transfer anyone who arrives in their emergency rooms. That goes for pregnant patients, the guidance argues, even if that means violating state law and providing an abortion. 
Paxton responded by filing a lawsuit in 2022, saying the federal guidance “forces hospitals and doctors to commit crimes,” and was an “attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic.” 
Part of the battle has centered on who is eligible for abortion. The federal EMTALA guidelines apply when the health of the pregnant patient is in “serious jeopardy.” That’s a wider range of circumstances than the Texas abortion restriction, which only makes exceptions for a “risk of death” or “a serious risk of substantial impairment of a major bodily function.” 
The lawsuit worked its way through three layers of federal courts, and each time it was met by judges nominated by former President Donald Trump, whose court appointments were pivotal to overturning Roe v. Wade. 
After U.S. District Judge James Wesley Hendrix, a Trump appointee, quickly sided with Texas, Paxton celebrated the triumph over “left-wing bureaucrats in Washington.” 
“The decision last night proves what we knew all along,” Paxton added. “The law is on our side.” 
This year, the U.S. Court of Appeals for the 5th Circuit upheld the order in a ruling authored by Kurt D. Engelhardt, another judge nominated by Trump. 
The Biden administration appealed to the U.S. Supreme Court, urging the justices to make it clear that some emergency abortions are allowed. 
Even amid news of preventable deaths related to abortion bans, the Supreme Court declined to do so last month. 
Paxton called this “a major victory” for the state’s abortion ban. 
He has also made clear that he will bring charges against physicians for performing abortions if he decides that the cases don’t fall within Texas’ narrow medical exceptions. 
Last year, he sent a letter threatening to prosecute a doctor who had received court approval to provide an emergency abortion for a Dallas woman. He insisted that the doctor and her patient had not proven how, precisely, the patient’s condition threatened her life. 
Many doctors say this kind of message has encouraged doctors to “punt” patients instead of treating them.
No one in Texas is running on the virtues of this law. Colin Allred and some PACs are running ads criticizing the law, replete with personal stories. Allred is hanging it around Cruz’s neck. A new ad is doing the same thing to Trump. Will it be effective? 

It has been in every state so far. We live in hope, because joy comes in the morning.
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Thursday, February 14, 2019

More Crunchy Goodness









This time it's not all about the Benjamins, but the "base"; and the primaries.

I stand by my prediction:  this is the hill Trump's presidency dies on, and with him will go the GOP.

And:  sure, why not?

As I was saying:

 



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Wednesday, January 09, 2019

So much winning!


Please, Mr. President, we're tired of all the winning!
Because "negotiating" means "I win, you lose!"

“The president was in this private meeting with Senate Republicans who were really—respectfully, in the words of Senator Murkowski—giving him a tough time, challenging him on the fact that the government should be re-opened by negotiations continued, and he was absolutely flat-out saying ‘no way,'” Bash said. “One senator I spoke to who asked that the identity not be discussed because it was a private meeting, said the president was determined not to budge and indicated no interest in compromising.”

Trump is not looking for a way out, that anonymous GOP senator said.

“He believes he is winning politically,” Bash said, quoting the senator. “This Senator said to me that every Republican has to stick together, that was the president’s message.”
No, literally!


So the beatings will continue until morale improves!

A few Republicans voiced concerns about the current situation, including Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME). But the vast majority made clear that they’re behind the President, even as some privately admit that they’re losing the argument over why the government should remain partly closed until Trump gets the $5.7 billion he’s demanded to construct a wall along the U.S.-Mexico border. The shutdown is just two days away from being the longest in U.S. history.

Murkowski is one of the few senators who has publicly questioned Trump’s strategy, and she confronted him during the meeting.

She told reporters that she pointed out that “the government is shut down and there are consequences and people are starting to feel those consequences.”

His response?

“He urged us to remain unified,” Murkowski said.

A handful of moderate Republicans, many from swing states, have been floating the idea of a Senate vote to reopen certain parts of government. But most remain publicly behind Trump, even as they grow increasingly nervous about the political and real-world consequences of the ongoing shutdown.

“I didn’t say nobody raised any concerns but nobody raised any negative concerns, and everybody is committed to staying the course,” Sen. Johnny Isakson (R-GA) said.

“Everybody’s going to remain in unity,” freshman Sen. Mike Braun (R-IN) said.

Senate Appropriations Committee Chairman Richard Shelby (R-AL) said it would be “futile” to vote on the individual departmental funding bills that House Democrats plan to pass, noting Senate Majority Leader Mitch McConnell (R-KY) has said he won’t bring the bills up. Trump also said he would veto the bills.

The President also didn’t bring up the possibility of declaring a national emergency in his remarks. But when a senator said they were glad Trump hadn’t declared one in order to try to seize other national security funds to build the wall, he held out the possibility that he still might, according to two senators in the room.

“He made it clear that it’s still an option but he decided at this point it wasn’t the right time,” said Rounds.

And when TSA agents start quitting in droves? (air traffic controllers aren't getting paid, either.  Think about that as you sit on the tarmac.)  And the IRS finds it can't legally distribute tax refunds?  C'est la vie, n'est pas?  And about that "national emergency" escape valve?  Yeah, Andrew Napolitano is schooling Fox & Friends about that:

Napolitano went on to say that in parts of Texas, the wall would need to be built on what is now private property—and the federal government “would have to condemn it and pay for it. (Trump) can’t do that without congressional authorization. He can’t spend money without congressional authorization.”

Napolitano added, “The emergency declaration allows him to mobilize assets, but it doesn’t allow him to take or occupy property—and it doesn’t allow him to spend money that Congress hasn’t authorized.”

At Fox News, Trump supporter Sean Hannity has asserted that forcing the construction of a border wall via an emergency declaration is a good idea. But Napolitano has not been shy about parting company with his colleagues at Fox News when he believes they are wrong. And on “Fox and Friends,” the judge stressed that a border wall would have to be funded by Congress whether Trump likes it or not.

“If the president, frustrated by Congress, could declare a national emergency and go around Congress, we would have seen this before,” Napolitano explained. “Barack Obama would have declared a national emergency in health care and started spending money on insurance policies to keep people healthy. And obviously, he didn’t because he couldn’t.”

Trump made his case for a border wall during a speech Tuesday. Napolitano noted that while Trump speech could urge the construction of a wall, “he can’t change the law, and he can’t avoid the Constitution.”
Will that dissuade Trump from winning? Of course not!

The emergency will be when his position becomes politically untenable!  Still doesn't mean he can do it; just means he can assure a quicker end to his Presidency, an end de facto if not de jure.

In the meantime, let's just say, if you work for the Border Patrol or the TSA or the IRS, or you're waiting for Trump to build the wall by Presidential fiat:  don't hold your breath.

You'll turn blue; for one thing.

UPDATE:  Unity already not holding.



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Thursday, July 14, 2022

So, According To The Current Supreme Court…

...the heavy hand of government is a GOOD thing!

(Yes, interfering with interstate travel is a thing. If you’re volunteering to be the test case, be my guest. Enjoy the next decades of your life in hell, whether you win or lose. How much privacy do you think that 10 year old girl is going to enjoy? Anytime now…

And how long will the attention last? And what damage can it do?

“Let’s you and him fight” is not a solid basis for social justice and establishing basic human and Constitutional rights.)
I add this just to point out a ten-year old can’t consent to sex (well, maybe in Tennessee), so Swalwell’s question has a barb in the tail. Meanwhile, the Supremes should be so proud of what they have wrought, how they have “corrected” and “purified” Constitutional jurisprudence.  You know, like this:

“She would have had the baby,"[Jim] Bopp [an Indiana lawyer who serves as general counsel National Right to Life Committee] said, "and as many women who have had babies as a result of rape, we would hope that she would understand the reason and ultimately the benefit of having the child."

A 10 year old, who cannot consent to have sex even with another ten year old, is somehow supposed to "consent" to childbirth because....why, again?

This is, frankly, absolutely monstrous.  But proof the argument is not about people, but only about ideas.  People don't matter, to Mr. Bopp.  Things matter, like babies (a baby raising a baby?).  Ideas matter.  But people?  Completely irrelevant.

And for the "Lock 'em up!" files, let us recall the halcyon days when Bill Clinton was beset by a special prosecutor determined to justify his position.  Nothing compared to an elected official with an issue in an election year:

Indiana attorney general Todd Rokita criticized Bernard on Wednesday evening, accusing her of not alerting the authorities to the case of the girl, as state law requires in case of sex crimes involving minors.

"We have this abortion activist acting as a doctor with a history of failing to report," Rokita said on Fox News.

"So we're gathering the information. We're gathering the evidence as we speak and we're going to fight this to the end, including looking at her licensure, if she failed to report," he added.

The crime occurred in Ohio.  The suspect was arrested there.  But never doubt the creativity of a determined prosecutor.  If nothing else, he'll make this doctor's life hell, simply for providing the right medical care to a young girl, at the direction of her parents (who were fully authorized to request the treatment).

Meanwhile, in Texas, Ken Paxton says "Goddammit, ya cain't guarantee wimmen's right to healthcare!  That's a sovereign interest o' the state, not the Feds!"

The Biden administration reassured the nation’s doctors that they don’t need to wait until a patient’s health deteriorates before acting and that they can act in cases where nontreatment would result in serious impairment, guidance that comes as medical professionals in Texas and other states where abortion is banned are trying to figure out what kind of women’s health care is allowed under new restrictions. The guidance isn’t seeking to update existing law but is said to clarify a hospital’s duties under the Emergency Medical Treatment and Active Labor Act.

“In no uncertain terms, we are reinforcing that we expect providers to continue offering these services, and that federal law preempts state abortion bans when needed for emergency care,” U.S. Health and Human Services Secretary Xavier Becerra said in a statement. “Under the law, no matter where you live, women have the right to emergency care — including abortion care.”

The Biden administration warned that if a hospital fails to provide emergency abortion treatment when necessary, it could be fined or have its Medicare status revoked.
Paxton's response is that carin' fer the wimmen folk is up to the Great State o' Texas, not to some natterin' nabobs of negativism and pointy-headed booreecrats in Washington DeeCee!

“This administration has a hard time following the law, and now they are trying to have their appointed bureaucrats mandate that hospitals and emergency medicine physicians perform abortions,” Paxton said in a statement. “I will ensure that President Biden will be forced to comply with the Supreme Court’s important decision concerning abortion and I will not allow him to undermine and distort existing laws to fit his administration’s unlawful agenda.”

Actually, Biden is just guaranteeing they get the medical care they need, when they need it.  I haven't seen too many people crowding emergency rooms looking for elective abortions.
Well, there's that, too.

I hope Alito feels good about what he did. Somehow I doubt he even gives a shit; which is even worse.

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Thursday, January 10, 2019

The View From Outside Washington

Meanwhile, Our President takes the trip he said was useless:

Where they aren't all happy to see him:

Meanwhile, back in Russia:

And even the GOP is (probably) aware that a "national emergency" would be a defeat, too:

“Lots of things are national emergencies,” [FoxNews analyst Chris] Stirewalt explained to Fox News host Sandra Smith. “Highway fatalities are national emergencies. If you define it that way, if you define it [as] what’s killing people, what are our problems, what are the things that are breaking the heart of this great nation, there are lots of things that are emergencies.”

“The Republicans will not let him declare a national emergency on this,” he continued, “and violate the Article I powers of Congress. They’re not going to let him do it because they know that if his successor, if President Kamala Harris says, ‘You know what, we have a national emergency on gun crime in the United States so I am going to start abridging the Second Amendment because I think that this is a national emergency because I have deemed it so.'”

“The reason the Republicans in Congress won’t let the president do that is because they know that one day there won’t be a Republican president,” Stirewalt concluded. “And when that happens, they don’t want that president to be able to willy-nilly declare a national emergencies and exert broad executive authorities.” 
Frankly, if Trump can suspend the 5th Amendment in an "emergency," President Kamala Harris can suspend the 2nd on the same grounds.
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Friday, February 01, 2019

Only Connect

The Washington Examiner notes:

House Speaker Nancy Pelosi could move to block President Trump from invoking a national emergency to build a border wall, forcing Senate Republicans to choose between preserving congressional power and crossing the White House.

The California Democrat, under a seldom-used statute, could put a binding “resolution of disapproval” on the House floor to counter Trump should he claim constitutional powers to unilaterally build a border wall. The president is threatening action if Congress refuses his demand for $5.7 billion in border wall funding. Friday, Trump expressed skepticism that a bipartisan commission seeking a deal on the wall to avoid another government shutdown would succeed, saying there was a "good chance" he would declare an emergency.

The lawmakers are desperate to avoid another standoff over immigration and are worried about political anger and even retribution from the pro-Trump base. Yet they are wary of endorsing an unprecedented expansion of presidential emergency powers. Some fear the powers, once in a Democratic president's hands, could be used to justify all sorts of progressive priorities.

The resolution would almost assuredly pass the Democratic House. Then, in a quirk of the law — the Congressional Review Act — Senate Majority Leader Mitch McConnell, R-Ky., would essentially be forced to hold a floor vote, with only a simple majority required for passage rather than the customary 60 votes.

Mitch McConnell thinks it would pass the Senate, too:

At least a half-dozen Republican senators are fiercely opposed to the idea of an emergency declaration, generating enough opposition that a disapproval resolution could pass the Senate,” the report says.
So does the Majority Whip in the Senate:

“We have a lot of folks who are uncomfortable with [an emergency declaration] for different reasons, some of which are constitutional and separation of powers,” Senate Majority Whip John Thune, R-S.D., said Thursday. “We prefer that not be the direction that the administration chooses to go. But the Democrats have to be willing to play ball here if we’re going to get a deal.”

Thune is not ruling out that several Senate Republicans could join with the Democrats to block Trump from declaring an emergency. A second Republican senator, speaking on condition of anonymity, predicted the president would suffer major defections if a vote on a resolution of disapproval is held.

And he wants to strike a "defiant tone" at the State of the Union.  As I've said, Trump's presidency is over.  All that's left now is the funeral.  He's a lame duck from here on.

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Saturday, June 28, 2025

SNAFU

 Professor Vladeck breaks it down for you:

The majority never actually explains why CASA (the lead private plaintiff in the Maryland challenge to the birthright citizenship executive order) can receive complete relief with an injunction that applies only to it and its members. Although the lower courts hadn’t spent much time on this issue (yet another issue with the Court deciding this question through emergency applications), CASA had specifically argued in the Supreme Court that it couldn’t get complete relief without a universal remedy. That said, given that the majority unambiguously voted to stay the injunction in the CASA case, it seems to have at least implicitly concluded that a CASA-specific injunction is sufficient.
The Court ruled that only where “complete relief” can be provided by a universal injunction, can such an injunction be valid. And what is “complete relief”? The Court declined to say (following in the tradition of Trump v US). But I’m interested in the parenthetical. The Court took this on emergency appeal, before the case had finished in the trial court, gone through appeals (which could include remands, new trials, new appeals. The ordinary course of business, IOW, before the Court decided its primary purpose is to protect Trump at all costs. After this opinion, that mask is definitely off.), and so before the parties had briefed ALL the issues raised by this case. None of that would have stopped the Court from ruling on the substantive legal question; but they planted their “Trump Uber Alles” flag when they took the emergency appeal; which was no emergency at all.


I’m still at a loss how a bedrock constitutional provision like birthright citizenship doesn’t require the defense of the Court for all persons, and how complete relief in this case doesn’t extend to all persons, as the 14th Amendment does. You know, like this:
But the other two cases before the Supreme Court have states as plaintiffs. And although the Trump administration had asked the justices to knock the states out, the Court (implicitly) declined in today’s ruling. So those cases go forward with state plaintiffs, for which the complete relief question is much harder.

Imagine, for instance, if the executive order goes into effect in, say, Texas (which is not one of the plaintiffs), but not in New Jersey (which is). New Jersey has pretty good arguments that the injunction has to cover babies born in Texas, or else it will be harmed both with respect to having to have different rules depending upon where babies are born and a concern that babies born in New Jersey will lose benefits (and maybe even face deportation) if they ever enter Texas. If a district court buys those arguments, then we could quickly see another universal injunction blocking the executive order—now with the analysis that the Supreme Court has held is necessary.
As I’ve said, the Court is more interested in questions of procedure and equity than in the issues procedure and equity are meant to ensure, which is justice. They take up Trump’s emergency appeals, and then use the “emergency” to limit their rulings to one issue, declining to address the consequences of their decisions until further proceedings can occur. In the case of Trump v U.S. that is practically an impossibility. How many criminal cases will come through the courts regarding the parameters of “official Presidential duties”? Since there has been only one criminal prosecution regarding a former president in American history. And I guess now the question of birthright citizenship has to “percolate” through the courts. And what about Professor Vladeck’s hypothetical?

New Jersey is a party to one of the cases ruled on yesterday. Their citizens are covered by the injunction, but those of Texas aren’t. Anybody really expect Ken Paxton to seek an injunction against Trump’s order on behalf of the citizens of Texas? Do we have to depend on a class action claim? A claim that will take a trial court months to certify, and which is subject to interlocutory appeals, which will have to make their way through the 5th Circuit and the Supreme Court. In the meantime, what? Paxton declares all children born to non-citizens in Texas are not U.S. citizens?

I’m surprised he hasn’t already. If he does, what happens to the babies born between certification of the class and the injunction? Irreparable harm? I’m pretty sure the Supremes have reserved that for the government alone, in this matter.
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Sunday, March 08, 2026

What You Didn’t Have On Your Bingo Disaster Card

 Corpus Christi, Texas running out of water next year. For real:

The imminent depletion of water supplies in Corpus Christi threatens to cut off the flow of jet fuel to Texas airports and other oil exports from one of the nation’s largest petroleum ports, triggering potential shockwaves through energy markets in Texas and beyond.

Without significant rainfall, Corpus Christi is headed for a “water emergency” within months and total depletion of the system next year, according to the city’s website. “The impacts are going to be felt tremendously through the state, if not internationally,” said Sean Strawbridge, former CEO of the Port of Corpus Christi Authority, the nation’s top port for crude oil exports, in a 40-minute interview Thursday. “This should be no surprise to anybody. We were talking about this over a decade ago.”

Other current and former officials, alarmed at what they call a lack of preparations, have suggested the potential for an economic crisis involving mass layoffs, disruption of fuel supplies and billions of dollars in emergency spending to avoid an evacuation of the city.
It's like this:
The region’s largest industrial users, which collectively consume the majority of the region’s water, remain exempt from emergency curtailment. These multi-billion-dollar refineries, petrochemical plants and liquified natural gas facilities are built to run at a steady rate and can’t simply throttle down production in accordance with water availability. They consume large volumes of water primarily in cooling towers to prevent excessive heating and explosions.
Which probably means:
Depletion of this region’s reservoirs would lead to “controlled depression” for the local economy, “mass unemployment” and “industrial total shutdown,” according to a two-page report by Don Roach, former assistant general manager of the San Patricio Municipal Water District, which supplies many of the region’s large industrial water users.

That includes refineries operated by Flint Hills Resources, Valero and Citgo that provide jet fuel to Texas airports and meet much of the state’s daily demand for gasoline.

“This waiting disaster is under the radar for the rest of the state,” said Roach, who worked 20 years at the water district and retired in 2014. “We hear nothing from the Texas politicians about the seriousness of the situation or any state plan to mitigate it.”

He no longer had access to current water data and contracts, he stressed, but produced the report based on his own knowledge. It said the costs of trucking in emergency water “would bankrupt many local small businesses and low-income households” while state emergency managers would need billions of dollars to “build emergency temporary pipelines or subsidize desalination barge rentals to prevent a total evacuation of the city.” Strawbridge, a former director of the Port of Long Beach, said Roach’s assessment was “spot on.”
And what does the region need?
The last hope to avert disaster, the official said, was a 20- to 30-inch rainfall.

“It would basically have to be a hurricane,” he said.
To put that in perspective, Houston go 50+ inches of rain during Harvey. And since then we’ve had to restrict water usage from time to time, because of drought. If a hurricane is your last hope, you’re really screwed. Especially when a hurricane would just be a stop gap measure.

Nothin’ but good times ahead!
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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 brought....in 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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