MAGAThread XV: Because Another

[Great Confederacy of Commonwealth States]

(a) With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

Just so we are all on the same page with regards to the law: the Courts may not have much leeway to do anything. I'll try to give a solid explanation as to why, coming from someone with a degree in law but not specifically US law. However, most of the legal matters at hand are international in nature, in the sense that the science of interpretation is similar between nations.

So, what we have here is something I would call a 'discretionary power'. That means the President is entirely free if and when he wants to declare a national emergency. Compare that, for instance, with article I section 2 of the US Constitution:

4: When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

This is a bound power, meaning that when a vacancy happens, the Executive Authority must make use of that power. It has no freedom to decide. There are all kinds of laws that are inbetween. For instance:

2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

In this case, the privilege of Habeas Corpus may be suspended, but there is no duty to do so. However, it can only happen in case of rebellion or invasion. So, the executive is semi-bound, having a little freedom to act on its own behalf.

Now, this is important, because of the separation of powers. The judiciary can only check of Trump is acting in accordance with the law; they cannot force him to adopt a policy that is up to his discretion. Simply put: when the president has freedom to decide, the Court has very limited power to actually stop him from doing anything. In the cases above: the Courts would, for example, reinstate Habeas Corpus when there is no rebellion or invasion. However, they cannot reinstate Habeas Corpus if there is such a rebellion or invasion, because then it falls within the power of the president to decide.

Relating this to the problem at hand: if the National Emergency Act has been the following:

(a) With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to recognise such national emergency when it occurs. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

The difference is: in this case, the Court can actually check if there is a factual national emergency, because the President does not have the freedom to decide what is and isn't a national emergency. He can only recognise one once it happens, and that lack of presidential power can be checked. However, the real article does not state that. It gives unrestricted power to the president to decide when there is a national emergency, so the Courts cannot actually check whether this is supported by facts.

This is a really dumb act, and it is very much open to abuse. Any law that depends on the good nature of the person it applies to is a bad law.

[Zurkerx]

"I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do this much faster," Trump said during his Rose Garden rant. Definitely seems like Trump is trying, whether consciously or not, to sink his own ship with.

Let's assume he manages to build his wall, just a hypothetical here. I wonder if people realize that the next Democrat and their majority could simply decide to dismantle it. I mean, talk about a punch to someone's accomplishments there.

[Internationalist Bastard]

I think not. The National Emergencies Act does not specify what an emergency is, so a President can basically declare one whenever. Congress gave those powers to the president by legislation, they were not usurped.

While they did definitely give the President the powers you can still argue that the constitution prohibits such transfer of power.

Effectively I’m saying that congress screwed it up and passed an unconstitutional law.

The thing I’m waiting for is how the land seizures will be handled

[Thermodolia]

This is the most stupid non emergency national emergency ever declared.

Courts, do your thing. This is an incredibly dangerous precedent of "If congress says no I can just declare a national emergency and have the thing I want anyway."

I fear it might be entirely legal. Congress made a stupid law with its National Emergency Act, it's very open to abuse. The checks and balances are placed with Congress, which can end it by majority vote. A few Republicans need to grow a spine first though if that were to happen.

It remains to be seen if it’s actually constitutional

[Internationalist Bastard]

"I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do this much faster," Trump said during his Rose Garden rant. Definitely seems like Trump is trying, whether consciously or not, to sink his own ship with.

Let's assume he manages to build his wall, just a hypothetical here. I wonder if people realize that the next Democrat and their majority could simply decide to dismantle it. I mean, talk about a punch to someone's accomplishments there.

If it gets built I’d rather keep it up and provide minimal maintenance to it
No need to make it a football

[Great Confederacy of Commonwealth States]

I think not. The National Emergencies Act does not specify what an emergency is, so a President can basically declare one whenever. Congress gave those powers to the president by legislation, they were not usurped.

While they did definitely give the President the powers you can still argue that the constitution prohibits such transfer of power.

Effectively I’m saying that congress screwed it up and passed an unconstitutional law.

If Congress agreed to transfer its own powers, then it cannot be unconstitutional. Congress can pass unconstitutional laws, but they are free to decide who actually executes their legislative function. They do this all the time. Many laws contain provisions allowing secretaries or the president to make certain evaluations that they would otherwise not be empowered to make.

[Zurkerx]

(a) With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

Just so we are all on the same page with regards to the law: the Courts may not have much leeway to do anything. I'll try to give a solid explanation as to why, coming from someone with a degree in law but not specifically US law. However, most of the legal matters at hand are international in nature, in the sense that the science of interpretation is similar between nations.

So, what we have here is something I would call a 'discretionary power'. That means the President is entirely free if and when he wants to declare a national emergency. Compare that, for instance, with article I section 2 of the US Constitution:

4: When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

This is a bound power, meaning that when a vacancy happens, the Executive Authority must make use of that power. It has no freedom to decide. There are all kinds of laws that are inbetween. For instance:

2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

In this case, the privilege of Habeas Corpus may be suspended, but there is no duty to do so. However, it can only happen in case of rebellion or invasion. So, the executive is semi-bound, having a little freedom to act on its own behalf.

Now, this is important, because of the separation of powers. The judiciary can only check of Trump is acting in accordance with the law; they cannot force him to adopt a policy that is up to his discretion. Simply put: when the president has freedom to decide, the Court has very limited power to actually stop him from doing anything. In the cases above: the Courts would, for example, reinstate Habeas Corpus when there is no rebellion or invasion. However, they cannot reinstate Habeas Corpus if there is such a rebellion or invasion, because then it falls within the power of the president to decide.

Relating this to the problem at hand: if the National Emergency Act has been the following:

(a) With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to recognise such national emergency when it occurs. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

The difference is: in this case, the Court can actually check if there is a factual national emergency, because the President does not have the freedom to decide what is and isn't a national emergency. He can only recognise one once it happens, and that lack of presidential power can be checked. However, the real article does not state that. It gives unrestricted power to the president to decide when there is a national emergency, so the Courts cannot actually check whether this is supported by facts.

This is a really dumb act, and it is very much open to abuse. Any law that depends on the good nature of the person it applies to is a bad law.

So basically, Congress passed an ambiguous law that can be heavily abused by both sides? Not surprising. Good job America...

[Internationalist Bastard]

While they did definitely give the President the powers you can still argue that the constitution prohibits such transfer of power.

Effectively I’m saying that congress screwed it up and passed an unconstitutional law.

If Congress agreed to transfer its own powers, then it cannot be unconstitutional. Congress can pass unconstitutional laws, but they are free to decide who actually executes their legislative function. They do this all the time. Many laws contain provisions allowing secretaries or the president to make certain evaluations that they would otherwise not be empowered to make.

My primary concern is that this probably is legal

[Great Confederacy of Commonwealth States]

If Congress agreed to transfer its own powers, then it cannot be unconstitutional. Congress can pass unconstitutional laws, but they are free to decide who actually executes their legislative function. They do this all the time. Many laws contain provisions allowing secretaries or the president to make certain evaluations that they would otherwise not be empowered to make.

My primary concern is that this probably is legal

Mine too.

[Seangoli]

"I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do this much faster," Trump said during his Rose Garden rant. Definitely seems like Trump is trying, whether consciously or not, to sink his own ship with.

So if he acknowledges that it isn't pertinent to do this right now, than how is this a National Emergency?

[Vassenor]

"I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do this much faster," Trump said during his Rose Garden rant. Definitely seems like Trump is trying, whether consciously or not, to sink his own ship with.

So if he acknowledges that it isn't pertinent to do this right now, than how is this a National Emergency?

Because Dear Leader says so. That should be all the justification a True American Patriot™ needs.

[Internationalist Bastard]

"I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do this much faster," Trump said during his Rose Garden rant. Definitely seems like Trump is trying, whether consciously or not, to sink his own ship with.

So if he acknowledges that it isn't pertinent to do this right now, than how is this a National Emergency?

Because he said so essentially
To my understanding this is just legally within his right to do this

[Kowani]

So if he acknowledges that it isn't pertinent to do this right now, than how is this a National Emergency?

Because he said so essentially
To my understanding this is just legally within his right to do this

Who the fuck designed this system?

[Great Confederacy of Commonwealth States]

Trump could say "There is no national emergency at all, but I have legally declared one, so there" and the Courts could do shit-all about it.

Well, unless he starts using those powers in a way inconsistent with the aim of the power. In that case, it could be invalidated through 'detournement de pouvoir', but only the act, not the emergency.

[Valrifell]

So if he acknowledges that it isn't pertinent to do this right now, than how is this a National Emergency?

Because he said so essentially
To my understanding this is just legally within his right to do this

I don't believe he's just allowed to take funds Congress assigned elsewhere to do with as he pleases, that would violate whatever section of the Constitution that pins Congress and the House in specific as the ones with the power of the purse.

[Thermodolia]

While they did definitely give the President the powers you can still argue that the constitution prohibits such transfer of power.

Effectively I’m saying that congress screwed it up and passed an unconstitutional law.

If Congress agreed to transfer its own powers, then it cannot be unconstitutional.

Actually it would be unconstitutional for congress to transfer it’s powers to the president under the separation of powers.

Congress can pass unconstitutional laws, but they are free to decide who actually executes their legislative function. They do this all the time. Many laws contain provisions allowing secretaries or the president to make certain evaluations that they would otherwise not be empowered to make.

There’s a slight difference here. Making evaluations or regulations is certainly within in the executives powers. Declaring a National Emergency is not. That solely resides with congress and not the executive. You can make a case that the National Emergency law is unconstitutional under the separation of powers

[Great Confederacy of Commonwealth States]

Because he said so essentially
To my understanding this is just legally within his right to do this

I don't believe he's just allowed to take funds Congress assigned elsewhere to do with as he pleases, that would violate whatever section of the Constitution that pins Congress and the House in specific as the ones with the power of the purse.

Yeah, but it could be possible that Congress gave the power of the purse to the President in national emergencies in another Act. If that is the case, then it is still constitutional, because Congress (the original holder of the power) gave the power to someone else. The constitution does not allow usurpation, but it does allow delegation.

[Seangoli]

"I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do this much faster," Trump said during his Rose Garden rant. Definitely seems like Trump is trying, whether consciously or not, to sink his own ship with.

Let's assume he manages to build his wall, just a hypothetical here. I wonder if people realize that the next Democrat and their majority could simply decide to dismantle it. I mean, talk about a punch to someone's accomplishments there.

Lets keep in mind that the 8 billion (as of now) he is eyeing is hardly going to pay for a fraction of the wall. I have mo idea where the hell people got it in their head that the 5.7 billion was for the entire wall. It wasn't, as was clear from day one. It was for a part of the wall amd additional border security along 300 miles of the border. Hell, the 300 miles itself wasn't even going to receive a of the border wall beyond that.

So he is going to have carry on this totally legitimate NE for how.many years, scraping together and drainong money from various Federal organizations pretty.much indefinitely.

To be blunt, Wall supporters have been utterly delusional on this go around. The number of people I have seen who actually believe the wall will be fully buolt this time next year for only 5.7 billion is just asinine.

[Thermodolia]

"I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do this much faster," Trump said during his Rose Garden rant. Definitely seems like Trump is trying, whether consciously or not, to sink his own ship with.

So if he acknowledges that it isn't pertinent to do this right now, than how is this a National Emergency?

That actually is a good question and will be used when states or the house take the order to court. Effectively Trump just gave the courts the ability to say there’s no national emergency and therefore the order is moot

[Great Confederacy of Commonwealth States]

Because he said so essentially
To my understanding this is just legally within his right to do this

Who the fuck designed this system?

https://en.wikipedia.org/wiki/Peter_W._Rodino

This man, apparently.


On a different note, I had a chat about this in the group chat of my master programme. Just a bunch of international lawyers shitposting, really.

"What moron made this"
"Makes Frank Underwood look good though"
"The actor or the character?"
"Both"

[Seangoli]

Because he said so essentially
To my understanding this is just legally within his right to do this

I don't believe he's just allowed to take funds Congress assigned elsewhere to do with as he pleases, that would violate whatever section of the Constitution that pins Congress and the House in specific as the ones with the power of the purse.

He can't take funds from just anywhere, but he can shift around some discretionary funds in the various organizations that fall under the Executive. Specifically apportioned funding is a no, but any funding for more general purposes is free game so long as the office operates within the Executove branch.

[Great Confederacy of Commonwealth States]

So if he acknowledges that it isn't pertinent to do this right now, than how is this a National Emergency?

That actually is a good question and will be used when states or the house take the order to court. Effectively Trump just gave the courts the ability to say there’s no national emergency and therefore the order is moot

Alas, it doesn't work that way. The President has to power to decide if there is a national emergency. He doesn't recognise it, he makes it legally so. There is no requirement that there actually is a national emergency.

[Washington Resistance Army]

I don't believe he's just allowed to take funds Congress assigned elsewhere to do with as he pleases, that would violate whatever section of the Constitution that pins Congress and the House in specific as the ones with the power of the purse.

He can't take funds from just anywhere, but he can shift around some discretionary funds in the various organizations that fall under the Executive. Specifically apportioned funding is a no, but any funding for more general purposes is free game so long as the office operates within the Executove branch.

This^

It'll probably pass through the courts without a ton of difficulty, but it is terrible precedent.

[Space Captain Brian Surgeon]

Isn't he just creating a rod for his own back? The money he gets from doing this isn't enough to build the whole wall, so he is going to be judged on what he can achieve with the money. It is doubtful a complete wall will work - you could build the sort of wall a high security prison has all along the border and still have drugs coming through like in a high security prison - so a partial wall is unlikely to impress anyone with its effectiveness.

[Seangoli]

So if he acknowledges that it isn't pertinent to do this right now, than how is this a National Emergency?

Because he said so essentially
To my understanding this is just legally within his right to do this

Oh, I know. I am talking from a logical standpoint. Legally he likely is capable.of doing this for now. That said, Congress can vote to end a National emergency through a joint resolution. My guess is Mitch is going to see how this plays out politically and decide whether to let Trump continue with this nonsemse or not when it becomes clear what people think.