Image: President Donald Trump gestures to the audience as he heads to the Oval Office after speaking during an event in the Rose Garden at the White House in Washington, Friday, Feb. 15, 2019, to declare a national emergency in order to build a wall along the southern border. (AP Photo/Susan Walsh)
Eric Yollick, The Golden Hammer
When I first heard mention of a declaration of a national emergency with respect to construction of a border wall, even though Congress fell short of giving President Donald Trump the full $5.7 billion of funds he – and the American People – wanted, I have to admit that my first reaction was “this action is a violation of the separation of powers doctrine under the United States Constitution.”
Nevertheless, then I began to examine the facts, not the national media and liberal rhetoric.
President made a declaration of a national emergency today, which will likely allow him to use approximately $2 billion of unencumbered military construction funds in the United States Department of Defense’s previously-enacted budget for the national emergency he declared with respect to the immigration crisis at our southern border with Mexico. There is no question that there truly is a crisis.
Human trafficking is a national emergency
Human trafficking of children across the Mexico-United States border for the purpose of selling those children into sexual slavery is a problem affecting tens of thousands of children, according to law enforcement agencies locally, such as in Montgomery County, Texas, far north of the border with Mexico, law enforcement agencies nationally, nonprofit organizations fighting to end such slavery, and hundreds of thousands of concerned individuals. Even the trafficking of one child across the border for that purpose is a national crisis. That child will suffer psychological and emotional damage for the rest of her or his life, in addition to whatever physical scars she or he may also suffer.
As the readers of The Golden Hammer made clear in a poll ten days ago, more than eighty percent of respondents agree that (1) American law enforcement agencies should protect individuals between 12 and 14 of age from adults who seek to have sex with them, states and the United States government should invest substantial resources to stop that conduct, and the cost of human lives to those victims and to society as a whole from such conduct is far greater than the substantial resources required to stop the conduct.
Put in those terms, even the overwhelming majority of liberal democrats support the concept of a physical barrier to stop human sex trafficking which is rampant over the Mexico-United States border.
Is the President’s declaration of a “national emergency” legal under statutory law?
President Trump made the declaration of a national emergency under the National Emergencies Act of 1976, which an overwhelmingly democrat Congress passed (in the U.S. House on a 388 to 5 vote!) and which President Gerald Ford signed into law.
Since 1976, presidents have declared a “national emergency” fifty-eight (58) times. During the administration of B. Hussein Obama, the president declared ten (10) “national emergencies.” Here is the list of the Obama administration’s “national emergency” declarations:
April 12, 2010: The National Emergency With Respect to Blocking Property of Certain Persons Contributing to the Conflict in Somalia was in respect to threats posed by Somali pirates.
February 25, 2011: The National Emergency With Respect to Blocking Property and Prohibiting Certain Transactions Related to Libya froze the assets of Libyan leader Muammar Gaddafi.
July 25, 2011: The National Emergency With Respect to Blocking Property of Transnational Criminals was in response to the rise in crime by specific organizations: Los Zetas (Mexico), The Brothers’ Circle (former Soviet Union countries), the Yakuza (Japan), and the Camorra (Italy).
May 16, 2012: The National Emergency With Respect to Blocking Property of Persons Threatening the Peace, Security, or Stability of Yemen addressed political unrest within the Yemen government.
March 16, 2014: The National Emergency With Respect to Blocking Property of Certain Persons Contributing to the Situation in Ukraine was in response to the Russian invasion of Crimea.
April 3, 2014: The National Emergency With Respect to Blocking Property of Certain Persons With Respect to South Sudan was in response to the ongoing civil war.
May 12, 2014: The National Emergency With Respect to Blocking Property of Certain Persons Contributing to the Conflict in the Central African Republic was in response to violence towards humanitarian aid workers.
March 8, 2015: The National Emergency With Respect to Blocking Property and Suspending Entry of Certain Persons Contributing to the Situation in Venezuela was in response to human rights violations.
April 1, 2015: The National Emergency With Respect to Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities was in response to Chinese cyber attacks on the U.S.
Nov 23, 2015: The National Emergency With Respect to Blocking Property of Certain Persons Contributing to the Situation in Burundi was declared after a failed coup.
The Obama “national emergency” in bold, above, which he declared to block property of transnational criminals including the Los Zetas organization in Mexico is still in place! President Trump could easily argue that the “national emergency” he declared today is little more than an adjunct of President Obama’s July 25, 2011, declaration.
In fact, there are thirty-one (31) of the fifty-eight (58) president-declared “national emergencies” which remain in effect under the statute the post-Watergate, overwhelmingly democrat Congress passed.
Congress can only undo the national emergency declaration by a majority-passed joint resolution and the President’s signature or by two-third majority to override the president’s veto.
Is it Constitutional?
There has been little meaningful challenge in American courts based upon the question of whether the National Emergencies Act violates the Separation of Powers Doctrine under the United States Constitution.
As discerning readers of The Golden Hammer, Montgomery County’s leading daily newspaper, must surely know, there’s clearly a United States Supreme Court decision which comes to mind and, of course, the concurring opinion of brilliant Associate Justice Robert Jackson, arguably the best writer ever on the Supreme Court of the United States, in that case.
The case is Youngstown Sheet & Tube Company versus Sawyer, in which the Supreme Court confronted in 1952 the issue of whether President Harry Truman’s 1950 seizure of certain steel production facilities in order to avoid a labor strike which would harm the American effort in the Korean War which had just begun.
The Supreme Court heard oral argument in the “Youngstown Steel” case in May of 1952. The Supreme Court of the United States voted 6 to 3 to declare President Truman’s emergency declaration unconstitutional. The opinion, however, was far more favorable to later presidential national emergency declarations than one might image on first blush.
In the majority opinion for the Supreme Court, Justice Hugo Black wrote that the President of the United States had no power to act unless the Constitution or Congress explicitly authorized him to do so. That holding – the President of the United States had no power to act unless the Constitution or Congress explicitly authorized him to do so – is often cited in later Court decisions.
Nevertheless, the written opinion most commonly cited in later courts is that of Justice Robert Jackson’s concurring opinion, in which he set out three scenarios to determine whether a president’s exercise of power comports with the United States Constitution:
- Cases in which the President was acting with express or implied authority from Congress, which are constitutional;
- Cases in which Congress had thus far been silent, referred to as a “zone of twilight,” which are uncertain;
- Cases in which the President was defying congressional orders, which are unconstitutional.
Justice Jackson concurred with the majority in the “Youngstown Steel” case, because President Truman had received no express or implied authority to seize private steel plans.
Justice Jackson’s tripartite analysis is such a fundamental aspect of American law that, at least until recent degradations of pedagogy, it used to appear in standard high school American history textbooks.
Justice Jackson’s opinion in 1952 and concerns over illegitimate uses of presidential executive power during the Nixon administration from 1969 to 1974 led Congress to pass the National Emergencies Act in order to attempt to circumscribe “national emergencies” as the only instances where the Chief Executive could act without Congressional authority.
Therefore, a legal challenge to President Trump’s declaration of a “national emergency” under a Congressionally-authorized circumstance where the President has first declared a “national emergency,” an undefined term in the statute, is likely to pass Constitutional muster after United States courts have followed Justice Jackson’s concurring opinion’s analysis for sixty-six (66) years.
President Trump intends to use military construction funds under the declared “national emergency.” Congress explicitly authorized such action in Section 2808 of Title 10 of the United States Code:
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 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 force. Such projects may be undertaken only within the total amount of fund that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.
President Trump’s move was nothing short of brilliant. He merely continued the actions of President Obama. His actions fall squarely within the legal foundation of Justice Jackson’s concurring opinion in Youngstown.
The American People will likely get their border wall and will have a serious opportunity to erect a major physical impediment to human sex trafficking!