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Why Trump Wins on National Emergency

Since passage of the 1976 National Emergencies Act, 50 U.S.C. §§ 1601-1651, some 60 or so “national emergencies” have been declared by American Presidents. Approximately half have expired over time, and 32 “national emergencies” now are active, typically renewed annually. (Quick — hide under your chair!) Under the law, the President has authority to declare a “national emergency” as long as it falls within any of 136 statutorily prescribed areas. Among those areas, he may authorize military construction projects using any existing defense appropriations for such military constructions:

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.

10 U.S.C.§ 2808 (a). (Emphases added.)

The President has declared a “national emergency” at the southern border and wants already-approved funds to be redirected towards construction of the ubiquitously discussed wall. Although his declaration should have included explicit references to the crises of human trafficking and opioid smuggling at the border, he did lay out the case for declaring an immigration emergency. Invoking his statutory authority, the President declared in pertinent part:

[B]y the authority vested in me by the Constitution and the laws of the United States of America, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.), [I] hereby declare that a national emergency exists at the southern border of the United States, and that section 12302 of title 10, United States Code, is invoked.… To provide additional authority to the Department of Defense to support the Federal Government’s response to the emergency at the southern border, I hereby declare that this emergency requires use of the Armed Forces and, in accordance with section 301 of the National Emergencies Act (50 U.S.C. 1631), that the construction authority provided in section 2808 of title 10, United States Code, is invoked and made available, according to its terms, to the Secretary of Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military departments.

He has that authority, and he wins under the law. OK, obviously the Trump Administration initially will lose on “National Emergency” at the district court level because some Obama-Clinton Judge within the ambit of the Ninth Circuit will say so. This is a script that has been played so many times that somnambulist Dems, by now — no matter where in America they live — wake up from their sleep-walking to find that they somehow ended up in Oregon, Washington State, California, or in one of the other 293 states in the Ninth Circuit. And then the Ninth Circuit will knock down the President by affirming the lower court on appeal. No point in appealing therefrom en banc. One day thereafter the matter will end up in the Supreme Court.

When it gets there, the Trump Administration wins on a basic principle: the law says so.The Act has a built-in provision for overturning a wrongful Presidential “national emergency” declaration: Congress can decide that the declaration is so improper that, after the President vetoes its joint resolution of disapproval, it can override his or her veto. In other words, the issue of “National Emergency” is a matter of politics, not a matter of law — as long as the underlying step-by-step provisions for declaring a National Emergency are followed. Thus, a President cannot simply impose a “National Emergency” declaration on the country without going through Congress. However, once the statutory process is followed, the checks and balances play out, and that’s that. If Congress cannot muster the votes in both chambers to issue a joint resolution of disapproval, then the declaration stands. If the joint resolution passes and then is vetoed, Congress can override the veto. If it overrides, then no emergency. If it fails to muster two-thirds, then the declaration stands.

Let’s face it: Some “national emergencies” are obvious: like having a director of the Central Intelligence Agency who voted for the Communist party candidate for President… or if Al Sharpton manages to sneak into the White House more than seventy times during the same presidency. Yet those two never got declared. But lots of actual National Emergencies are on the books like, well —

  • Trump — December 20, 2017: Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption in Myanmar relating to the Rohingya conflict. The main target: Gen. Maung Maung Soe. National Emergency!
  • Obama — November 22, 2015: Blocking the property of Four Guys in Burundi: Alain Guillaume Bunyoni, the Minister of Public Security; Cyrille Ndayirukiye, a former Defense Minister who was involved in an unsuccessful military coup attempt; Godefroid Bizimana, Deputy Director-General of the Burundi National Police; and Godefroid Niyombare, a former head of national intelligence (just like John Brennan) and a former Major-General who led the unsuccessful coup. (As Ilhan Omar might say, “It’s the Godefroids, baby!”) National Emergency!
  • Obama — April 3, 2014: Blocking the property of certain people on the wrong side of the South Sudan civil war. National Emergency!
  • Bush — February 7, 2006: Blocking le propertie de certaine peoples aux conflicte in Côte d’Ivoire. (Took les dix ans — le tenne yearse — tiux declaire le emergencie finito.)
  • Clinton — January 18, 2001: Prohibiting importing rough diamonds from Sierra Leone (not to be confused with digging for treasure in Sierra Madre). The “national emergency” ended three years later, so now they can bring in the diamonds and don’t need no stinkin’ certificates.
  • Clinton — May 20, 1997 — Prohibiting new investment in Burma. National Emergency! Now you know why we never see those “Burma Shave” billboards any more. (If you/Don’t know/Whose signs/These are/You can’t have/Driven very far.)

When considered against the six examples above, the President’s declaration of a national emergency on the southern border seems rooted in rather obvious statutory authority and facts on the ground. For example, Congress was copacetic with this one:

The situation in and in relation to South Sudan, which has been marked by activities that threaten the peace, security, or stability of South Sudan and the surrounding region, including widespread violence and atrocities, human rights abuses, recruitment and use of child soldiers, attacks on peacekeepers and humanitarian workers, and obstruction of humanitarian operations, continues to pose an unusual and extraordinary threat to the national security and foreign policy of the United States. For this reason, I have determined that it is necessary to continue the national emergency declared in Executive Order 13664 with respect to South Sudan.

We all lose sleep over that national emergency. And the Revolutionary United Front in Sierra Leone was funding its brutal and vicious civil war by smuggling diamonds through Liberia. But here’s what’s been going on south of San Ysidro, San Diego, El Paso, and other points south at our border:

More than 76,000 people tried to cross illegally last month. That’s a rate of almost a million illegals per year. Kevin McAleenan, head of Immigrations and Customs Enforcement (ICE), recently said that the system is at its “breaking point.… It presents an urgent and increasing crisis. These increases in traffic are a direct response from smugglers and migrants to the vulnerabilities in our legal system.” He continued, “This situation is not sustainable.… Regardless of anyone’s preferred policy outcome, the status quo is unacceptable. It presents an urgent and increasing crisis that needs to be addressed.” There is now a backlog of more than 800,000 pending cases in U.S. immigration courts

The Democrats call themselves “the Resistance” and have their cynical reasons for opposing anythingt he President does. Aside from their overriding effort to obstruct the President at every turn, they singularly want open borders and massive illegal immigration for the same reason that some or more of them want:

  • 16-year-olds to vote
  • felons to vote
  • ballots harvested in California and Arizona but not in North Carolina

To wit, these are their constituencies — uninformed kids with acne who swallow Tide pods because they are brightly colored just like the fruit flavors in Trix cereal; bank robbers, drug dealers, and kidnappers; vote manipulators and schemers; and people who know almost nothing of our language, Constitution, and national values but are guaranteed to be dependent on taxpayer-funded government handouts for at least the next one or two generations. Therefore, when Democrats posit “arguments” on the subject of the President’s declaration of a national emergency, one needs remember only that many of these same Democrats want to pay reparations (to Obama? to R. Kelly? to LeBron James? to Jussie Smollett? to Louis Farrakhan? to Beyoncé?), to close down ICE, and to defend and increase “Sanctuary Cities” that defy federal law.

On the other hand, the main compelling argument advanced by relatively reasonable Republican senators who oppose the President’s declaration is their fear that, if the President defies Congress this time — albeit for a cause they regard as excellent — then a Democrat President next time will invoke that precedent to declare a “national emergency” to justify imposing socialism or radically devastating “climate change” enactments. However, the thing is: The Democrats do it anyway. Harry Reid wanted to have Obama’s federal court nominees exempted from the long-standing filibuster rule that required at least sixty Senate votes to confirm — so he just did it. Obama wanted to admit the “DACA” people — so he just did it in blatant violation of law, as he himself conceded. Now they are starting to advocate stacking the Supreme Court if they get the power. They do what they want anyway. By contrast, the President’s action is statutorily authorized, with a mechanism for checking and balancing.

It is understandable that Susan Collins of Maine will vote to disapprove. She has a reelection campaign on the horizon, and the pain in Maine is mostly with the insane. She did the right thing on Justice Kavanaugh, for which her staffer thereupon was threatened with rape, so she has earned a pass on this one. Rand Paul is… Rand Paul. When he really is needed and the chips are down, he somehow always comes through, so he can enjoy his Ayn Rand moment here, though John Galt not only would disagree with him but even would be wearing a t-shirt emblazoned: “Who Is Rand Paul?” Lisa Murkowski, the Annoyance from Alaska, never gets her berings strait and therefore can be expected to vote annoyingly. Understand that only five percent of her state is descended from Hispanic ethnicities; therefore, unrestrained illegal chaos on the southern border is not her problem because they do not race to build igloos, and she’s got all the ice she needs. As for Thom Tillis of North Carolina, he is up for reelection in 2020, and it is what it is — the Joe Manchin thing.

Ultimately, the President will veto the resolution of disapproval, and the Congress will not successfully override. When the ACLU court challenge reaches the Supreme Court, the President wins because the statute authorizes his declaration. He followed the steps and procedures required under 50 U.S.C. § 1631. His specific plan conforms to 10 U.S.C.§ 2808 (a). The emergency is at least as urgent to this nation as was the ban on Sierra Leone diamonds smuggled through Liberia or the ban on the Burundi Godefroids. It will be nice to see that wall erected. And it will be nice finally to complain: “Please, Mr. President, I can’t stand winning so much!”

Dov Fischer
Dov Fischer
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Rabbi Dov Fischer, Esq., a high-stakes litigation attorney of more than twenty-five years and an adjunct professor of law of more than fifteen years, is rabbi of Young Israel of Orange County, California. His legal career has included serving as Chief Articles Editor of UCLA Law Review, clerking for the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit, and then litigating at three of America’s most prominent law firms: JonesDay, Akin Gump, and Baker & Hostetler. In his rabbinical career, Rabbi Fischer has served several terms on the Executive Committee of the Rabbinical Council of America, is Senior Rabbinic Fellow at the Coalition for Jewish Values, has been Vice President of Zionist Organization of America, and has served on regional boards of the American Jewish Committee, B’nai Brith Hillel, and several others. His writings on contemporary political issues have appeared over the years in the Wall Street Journal, the Los Angeles Times, the Jerusalem Post, National Review, American Greatness, The Weekly Standard, and in Jewish media in American and in Israel. A winner of an American Jurisprudence Award in Professional Legal Ethics, Rabbi Fischer also is the author of two books, including General Sharon’s War Against Time Magazine, which covered the Israeli General’s 1980s landmark libel suit.
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