A defiant President Trump promised yesterday to declare a national emergency to get the wall he promised to build constructed on America’s porous southern border, as Congress gave him funding –with plenty of strings attached– to build 55 miles of border barriers.
“President Trump will sign the government funding bill, and as he has stated before, he will also take other executive action—including a national emergency—to ensure we stop the national security and humanitarian crisis at the border[,]” the White House tweeted Thursday at 3:44 p.m.
Trump, who said he was “not thrilled” with the omnibus spending bill, is nevertheless expected to sign “and declare the national emergency in an appearance Friday morning, according to a senior White House official who spoke on the condition of anonymity,” the Washington Post reports.
On the Senate floor, Senate Minority Leader Chuck Schumer (D-N.Y.) said declaring an emergency was “a very wrong thing to do.”
Speaker of the House Nancy Pelosi (D-Calif.) indignantly tweeted, “The Congress will defend our constitutional authorities.”
She added, “@realDonaldTrump couldn’t convince Mexico, the American people or their elected representatives to pay for his ineffective and expensive wall, so now he’s trying an end-run around Congress in a desperate attempt to put taxpayers on the hook for it.”
“It is yet another demonstration of @realDonaldTrump’s naked contempt for the rule of law. This is not an emergency, and the President’s fearmongering doesn’t make it one.”
Invoking the National Emergencies Act, as the president is expected to do, may be the only way to build the wall. Getting the wall constructed is Trump’s signature campaign promise. His reelection may depend on it.
The problem is that the tough restrictions lawmakers imposed on the use of the funds in the fiscal legislation may prevent the 55 miles of permissible barrier structures from being built at all.
The 1,169-page, $333 billion funding measure contains $1.375 billion for the wall, which falls short of the $5.7 billion the president sought. The $5.7 billion request itself is a fraction of the $25 billion Trump originally said he wanted.
The Senate passed the measure, which funds the government through the fiscal year-end of Sept. 30, by 83 to 16 on Thursday afternoon. Hours later the House gave final congressional approval by passing the bill 300 to 128. Even if the president were to veto the bill, his disapproval could be overridden by lawmakers because the measure passed both chambers with large supermajorities.
The congressional move comes after the 35-day partial government shutdown, which ran from Dec. 22, 2018 to Jan. 25, 2019, the longest shutdown of the U.S. government in history.
But it seems unlikely that “a single mile of fence will be built” because various provisions in the bill make it politically difficult, if not impossible, to move forward with construction, according to an analysis by Daniel Horowitz of Conservative Review.
The spending bill limits construction to the Rio Grande Valley alone, and allows “only bollard fencing, not concrete walls of any kind.” Within the valley, construction is prohibited at five locations on state or federal lands, where they are urgently needed, he writes. “The national parks along the border have gotten so bad that park rangers are scared to travel alone in them.”
Section 232(a) gives “liberal local officials … veto power over” the wall, he writes.
Before any construction may begin, the bill mandates that the Department of Homeland Security must first “confer and seek to reach mutual agreement regarding the design and alignment of physical barriers” with local elected officials in the affected areas. “[N]o funds made available in this Act shall be used for such construction while consultations are continuing,” the legislation adds.
“Now you can understand the brilliance of limiting the wall to the Rio Grande Valley,” Horowitz writes. “These are the most liberal counties on the border (thanks to demographics of open borders itself!), and there is practically no local official who supports the wall in these counties.”
The consultation requirement favors “all the Beto O’Rourke type of politicians in that region have de facto veto power,” he writes. “There’s a reason why they didn’t authorize fencing in conservative counties like Cochise and Yuma in Arizona.”
Horowitz objects to the spending bill for other immigration-related provisions as well.
Section 224(a) provides an amnesty of sorts by blocking “the deportation of anyone who is sponsoring an ‘unaccompanied’ minor illegal alien – or who says they might sponsor a UAC, or lives in a household with a UAC, or a household that potentially might sponsor a UAC.”
Under current law, Central American teenagers are only treated as refugees if they are A) a victim of “A severe form of trafficking” and B) have no relatives in the country. Yet almost all of them are self-trafficked by these very illegal relatives who are indeed present in the country. Rather than clamping down on this fleecing of the American people, the bill gives amnesty to the very people paying the cartels to invade us!
“We can call this the MS-13 Household Protection Act of 2019,” said Jessica Vaughan of the Center for Immigration Studies. “We know that 80 percent of the UAC sponsors are in the country illegally.
Meanwhile, Trump may be able to build the wall by using the National Emergencies Act, as he said he will do.
Legal experts say the president can call upon the statute, which President Gerald Ford signed into law in 1976, to get construction of the wall underway.
President Trump has already invoked the National Emergencies Act three times in his tenure, according to ABC News. President Barack Obama invoked the statute no fewer than 10 times. Thirty-one previously-declared emergencies currently remain in effect, CNN reports.
In a recent column left-wing constitutional law professor Jonathan Turley questioned the wisdom of using the statute but confirmed that Trump has the legal authority to act.
“Congress expressly gave presidents the authority to declare such emergencies and act unilaterally,” Turley wrote.
The National Emergencies Act gives presidents sweeping authority as well as allowance in federal regulations to declare an “immigration emergency” to deal with an “influx of aliens which either is of such magnitude or exhibits such other characteristics that effective administration of the immigration laws of the United States is beyond the existing capabilities” of immigration authorities “in the affected area or areas.” The basis for such an invocation generally includes the “likelihood of continued growth in the magnitude of the influx,” rising criminal activity, as well as high “demands on law enforcement agencies” and “other circumstances.”
And such an emergency declaration would likely be upheld by the Supreme Court, assuming the nine justices don’t suddenly deem the underlying statute unconstitutional.
Despite the protests of RINOs, NeverTrumpers, and Democrats, some of whom claim the promised declaration would be lawless, invoking the National Emergencies Act is constitutionally sound. It is, after all, a law duly passed by Congress that delegates emergency powers to the Chief Executive and that has been used many times by many different presidents. Not too many people have questioned the law’s constitutionality, or at least they didn’t before Trump became president. Nor would using the act make Trump a modern-day caesar, as some of his more unhinged critics claim.
As Supreme Court Justice Robert H. Jackson wrote in Youngstown Sheet & Tube Company v. Sawyer (1952):
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty.
Of course, the constitutionality of the National Emergencies Act could be attacked in court.
House Armed Services Committee Chairman Adam Smith (D-Wash.) and other Democrat lawmakers have threatened to file a lawsuit if Trump invokes the law to secure funding to build the wall.
Trump’s opponents will no doubt go judge-shopping and file a legal challenge in the geographical territory of the crazy, often-reversed U.S. Court of Appeals for the Ninth Circuit, in hopes of obtaining injunctions to freeze the declaration.
Supposedly, the emergency declaration could also be canceled by Congress if a simple majority in both chambers voted to kill it. However, Trump could veto the disapproval measure in which case the emergency would be annulled only if a two-thirds supermajority in both chambers voted to do so.
So this ongoing chess game over America’s future isn’t likely to conclude anytime soon.