Cogito Ergo Non Serviam
Trump Declares National Emergency on Southern Border
Donald Trump's dream of building a Maginot Line along the southern border of the US to keep out all those tired, poor and hungry yearning to breath free has taken a beating. He failed to take a deal early last year that would have provided $25 billion for construction. He shut down the government in December and January to secure $5.7 billion and failed to achieve that. So, Friday, he signed a bill that gave him $1.37 billion for border security and declared a national emergency to pilfer another $6+ billion from existing projects. Nothing will get built while the courts adjudicate this, and it will take years simply to buy up the land if he were to succeed in the courts. The only thing he will achieve here is full employment for lawyers. The idea is both stupid and dangerous.
The 1974 law that lets the president declare a national emergency has been used more than 50 times since it went into effect, almost exclusively having to do with national disasters, the Iranian Hostage Issue of 1979-1980 and the Al Qaeda murders of September 2001. The president can, under the law, provide emergency funding because it is presumed Congress cannot act quickly enough to save lives and property in the short term. Usually, the president is acting in a way that Congress has not addressed because there has not been time.
Article 1 of the Constitution expressly gives Congress the power to raise and spend money in the name of the federal government. The emergency law merely delegates to the president limited authority to spend funds already appropriated in a way that serves the national interest. In this instance, Congress has weighed in repeatedly with funding legislation that stated there would be no money for the Maginot Line South. Legislators debated and voted, and approved no money for the wall Mexico is supposed to pay for.
Some say that the courts have usually deferred to the president when it comes to deciding what an emergency is. This is true to a degree, but the courts (as well as Congress) have declined to invent a special meaning of the term emergency beyond its standard usage. An emergency is a short-term matter. How a problem that has persisted for decades and about which the Congress did nothing while under Republican control for the last two years can meet the definition of emergency is difficult to determine. One expects this declaration to be rejected by the Supreme Court.
Even if it is upheld, Mr. Trump's wall will languish in the courts of years. The problem is that the federal government does not own a strip of land from San Diego on the Pacific Coast to the Gulf of Mexico. That means that the takings clause of the Constitution kicks in. The government may take property of individuals for the common good provided fair and adequate compensation is paid in return. If the Feds knock on a ranch house door in west Texas and offer a bag of money in exchange for land to build the wall, there are a number of issues that could disrupt the transaction. First, the bag may not be big enough. Second, the amount of land or its precise location may not be acceptable to the owner. Third, the owner may not want the wall at all. Any of these would cause a dispute to go to the courts. Multiply that by the number of hundreds, even thousands, of property owners along the border, and one has an idea of the number of cases at issue. Even if the government tried to make it a class action to streamline matters, the plaintiffs could resist for months or years.
Worse, though, this sets a bad precedent. A future Democratic president could declare an emergency to halt gun sales, to end the sale of internal combustion engines, perhaps even to roll back all tax cuts since 1961. The emergency declaration when there is no emergency merely subverts the Constitution. It violates the political dictum of never taking power for oneself that one wouldn't want the opposition to wield.
In the end, one wonders if Mr Trump really wants his wall at all. He might prefer to simply have the fight as a political issue. If so, he is not as foolish as his actions have appeared, but they have appeared to be very foolish.
© Copyright 2019 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Ubuntu Linux.
Kensington Review Home
|
|
|
