Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
The 411 on the Latest National Emergency
President Trump’s declaration, on 15 February 2019, of a “national emergency,” is quite ordinary, the latest in a long line of such declarations going back to President Carter. Far from creating some dangerous precedent, it only reinforces our constitutional order. While it will certainly be challenged in federal court, this may actually be the opportunity to set Article III courts back on their proper path, ending bad behavior by the lowest level, federal district judges.
The Ricochet editors desk posted the entire text of the declaration in Trump Declares National Emergency at the Southern Border. The text is quoted from the White House page, Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States. C-SPAN has the video and transcript of President Trump’s remarks, followed by some hostile questions on the lawn.
In his remarks beforehand, President Trump repeatedly invoked Angel Moms and had them stand with the photograph of their dead loved one. These women, seated in the front row, turned and put the inconvenient truth into the face of the media who have pointedly ignored their loss. Do watch the video.
Trump pointed out that declarations of national emergency are quite ordinary. We need not take his word for it. Instead, take the word of ABC News: Here’s a list of the 31 national emergencies that have been in effect for years. You can check these yourself in the Federal Register.
Far from creating some dangerous precedent, President Trump is only reinforcing our constitutional order. His declaration conforms, in its contents, to the requirements of the National Emergencies Act. This law is neither too long to read nor too hard to find — especially if you are reading this now. Consider the text of the declaration (emphasis added):
NOW, THEREFORE, I, DONALD J. TRUMP, by 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.), 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 and made available, according to its terms, to the Secretaries of the military departments concerned, subject to the direction of the Secretary of Defense in the case of the Secretaries of the Army, Navy, and Air Force. 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 then reinforces the requirement to act in accordance with law (emphasis added):
Section 1. The Secretary of Defense, or the Secretary of each relevant military department, as appropriate and consistent with applicable law…
Sec. 2. The Secretary of Defense, the Secretary of the Interior, the Secretary of Homeland Security, and, subject to the discretion of the Secretary of Defense, the Secretaries of the military departments, shall take all appropriate actions, consistent with applicable law…
The declaration cites “sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.).” Consider each of these brief sections, emphasis added.
(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.
(b) Any provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect (1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and (2) only in accordance with this chapter. No law enacted after September 14, 1976, shall supersede this subchapter unless it does so in specific terms, referring to this subchapter, and declaring that the new law supersedes the provisions of this subchapter.
When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress.
As laid out in The “411” on “National Emergency,” the words “national emergency” have specific, limited, legal effect. It is not “abracadabra,” giving the President anything he wants. It is only an “open sesame” to access legal authority given in other statutes that specifically refer back to the National Emergencies Act.
Section 12302 of title 10, United States Code, provides for involuntary activation of National Guard and drilling Reserve personnel, together comprising the “Ready Reserve”:
(a) In time of national emergency declared by the President after January 1, 1953, or when otherwise authorized by law, an authority designated by the Secretary concerned may, without the consent of the persons concerned, order any unit, and any member not assigned to a unit organized to serve as a unit, in the Ready Reserve under the jurisdiction of that Secretary to active duty for not more than 24 consecutive months.
(b) To achieve fair treatment as between members in the Ready Reserve who are being considered for recall to duty without their consent, consideration shall be given to—(1)the length and nature of previous service, to assure such sharing of exposure to hazards as the national security and military requirements will reasonably allow;
(2) family responsibilities; and
(3) employment necessary to maintain the national health, safety, or interest.
The Secretary of Defense shall prescribe such policies and procedures as he considers necessary to carry out this subsection.
(c) Not more than 1,000,000 members of the Ready Reserve may be on active duty, without their consent, under this section at any one time.
Section 2808 of title 10, United States Code, provides:
(a) 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.
(b) When a decision is made to undertake military construction projects authorized by this section, the Secretary of Defense shall notify, in an electronic medium pursuant to section 480 of this title, the appropriate committees of Congress of the decision and of the estimated cost of the construction projects, including the cost of any real estate action pertaining to those construction projects.
(c) The authority described in subsection (a) shall terminate with respect to any war or national emergency at the end of the war or national emergency.
President Trump telegraphed in his remarks that he expects to lose at the federal district court and appellate levels in the Ninth Circuit. He also expects to win at the US Supreme Court. While his declaration will certainly be challenged in federal court, this may actually be the opportunity to set Article III courts back on their proper path, ending bad behavior by federal district judges. I explained how this could play out in Declare National Border Emergency, Kill Two Birds with One Stone:
Done right, this is the opportunity to force the Supreme Court to confront the issue of nationwide injunctions, that has already been addressed by Justice Thomas in his concurring opinion in Trump v. Hawaii. The idea that a district court judge would dare to claim to bind the whole nation, and so all his judicial peers, by his decision flies directly in the face of common sense, legal tradition, and, arguably, the Constitution.
While the Supreme Court has not yet seen the need to rule on the issue, it would be forced to if the Fifth Circuit asserted its rights over its geographic area and rejected claims by the Ninth Circuit to have any binding authority in the same space.
As Mark Davis says, “President Trump makes everyone better.” He is putting the courts in a position to remedy overreach by district judges. He is, once again, showing Congress that campaign promises can and must be kept. He is showing the difference between using limited statutory authority and “pen and phone” executive overreach. It has been another good day in America.
Published in Politics
Thanks for providing the specific language cited in Trump’s Declaration as well as the link back to your prior post with additional statutory language. It is very helpful to be able to quickly access it.
You have me convinced. Great post.
The immediate legal question that jumped out at me looking at these statutes is whether under Section 2808 these are “military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces“.
I followed your links and found this definition of “military construction“:
Thanks, Cliff. Of the 31 active states of emergency 16 have nothing to do with a direct threat to the US, but are typically… well, I’ll just list them here.
***
Do any at all of these look like a national emergency?! On par with securing our own actual border against illegal ingression by foreign nationals, drug smugglers, violent gangs and committed terrorists entering?
Again, this looks like one of the very few real “national emergency” emergencies. All the others, that have to do in some way with protecting the US from nuclear proliferation or international criminal activity actually are all conducted overseas and directed at overseas activities. This is the only one actually involving the US geographical area proper.
To anyone who argues Trump is a madman or usurping authority or unduly using federal or executive power, you can say:
Of the 31 current “emergencies” still in effect, going all the way back to Jimmy Carter in 1976, this is the only one effecting the geographic United States, and it’s protecting the border.
Coincidentally I have been reading this missive which denies that the President has authority under the Constitution. It is pretty persuasive, at least to me.
As I read through this it strikes me there are two issues.
Does the President have the authority to declare a national emergency on this subject? Given the lack of definition and other such declarations he may very well.
Can he use the military for the purpose he wants (constructing the wall)? To me, the definition cited above raises some question as to what the answer is.
There’s no denying this is one of the best attempts to persuade a skeptical public Trump is not acting ultra vires.
But…(you knew there was a but, right?) I’m not convinced. I think the famous Jackson concurrence in the Steel Siezure Cases applies here.
Surely Congress spoke clearly when it said “you shall spend this much of the citzens’ money and you shall spend it this way branch number 2” when it passed (and Trump signed) the appropriation bill.
Per Jackson, that puts the XO in the category where the president’s power is at a low ebb. Yes yes, there are other acts of Congress but the exact action taken in the XO was discussed by the only branch capable of appropriating tax payer dollars and it did not choose to spend as the president wished.
I came across this at Redstate which, if accurate, puts a different light on the emergency declaration, and specifically the funding for action:
One note on the $1.3 billion in the appropriation bill signed by the president is, as others have noted, the conditions imposed on that expenditure mean it will never be spent. However that still leaves $3.1 billion to spend before any emergency declaration funds would be tapped.
Thanks Gumby! With building under 4 authorizations, we can expect lots of action in the courts. Happy to 10-284 invoked. I suspect the declaration of emergency is just a side-show.
I would still like to see Trump shutdown the legal points of entry until Mexico agrees to stop human trafficking. Trump stands a better chance negotiating with Mexico, since they don’t have RINOs in charge.
To my mind, this is what an Army Corps of Engineers is for. (Except for when they are deployed in other countries.)
Except that current law provides express authority to reallocate specific funds, if the president declares a “national emergency.” Funds for the relevant program have been allocated for this fiscal year, and have not all been obligated. Per the express terms of the National Emergencies Act, courts are not permitted to construe future laws (like the appropriations bills just signed) against the “national emergency” provisions unless Congress specifically cites the National Emergencies Act section it intends to amend.
That statute comes far later in time than the Steel Seizures Case.
I don’t think that’s right. You presume that the emergency statutes at issue give clear grant of power to the president to take the specific acts he did in the XO. Respectfully, that is not as clear as you think. It’s hotly debated among conservative and liberal lawyers alike. The fact Congress so clearly constrained the president’s ability to take the acts in the XO will not help him convince a skeptical court he is within the emergency acts.
What I am most curious to know is how many of the prior declarations under former presidents have been challenged in court by the opposition.
Management will be by ACOE, actual work done by private contractors.
The question I see is, regardless of who manages or does the work, is it “military construction” per the definition above.
“XO?” We are not talking hugs and kisses. Nor are we talking an “executive order,” although anti-Trump/anti-MAGA voter “conservative” lawyers may wish to conflate a presidential proclamation with an executive order, so as to muddle the issue with Obama’s “pen and phone.”
If Congress is truly opposed to building the wall and securing the border, they have the opportunity, under the National Emergencies Act, to vote against the president’s declaration. Let’s see a majority in both chambers do that. Then let’s see the veto override vote. That, of course, would be the truly conservative and constitutionalist position, and it is telling that the focus is on trying to litigate instead.
The National Emergencies Act provides a clear remedy: a vote by Congress to end the national emergency. It is telling that everyone is avoiding this statutory remedy and trying to spin Article III courts into taking their side. The responsible, conservative, constitutionalist position for the courts to take is just this: Congress has created its own remedy, let it exercise that remedy.
According to John Yoo in an article written on the AEI site:
“If Trump declares a border emergency, Section 2808 of Title 10 of US law provides authority to build a wall: When a national emergency “requires use of the armed forces,” the Defense Department “may undertake military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces.”
As commander in chief, Trump has already ordered 3,000 troops to defend the nation’s territorial integrity at the southern border. A wall, arguably, would support those troops by protecting them and reducing the need for more troops. And other, similar laws would allow Trump to redirect funds from civil works projects and drug interdiction programs toward construction of a wall he decided was needed during a national emergency.”
Isn’t that the gist of the matter ?
Ds stonewall. They understand Trump’s success has proven to be the greatest threat to their power in more than a generation.
Ha! I’m being upbraided for conflating a presidential proclamation with an XO as if in the context of executive arrogation there is any difference.
But you make clear this is just a partisan matter for you. You weaken your case when charge reasoned critics as unconservative and unconstitutional.
Nothing especially reasoned about calling exercise of statutory authority, in fulfillment of a core GOP presidential campaign promise, “executive arrogance,” while running to the courts, rather than calling on Congress to exercise the statutory remedy baked into the National Emergencies Act.
I’d argue that this is in US national interest.
Freedom of navigation permits US commercial traffic to engage in international commerce.
But not a state of emergency. I did mean to star* that for the reason you point out. But still it’s not a direct threat to the US except to shipping that uses that route. And that’s about the worst one in the bunch. These are as often as not being used as punishment for in-house nastiness in foreign countries rather than emergency threats to the US.
My contribution to these mega-issues is almost always to sigh and say that “it’s a much closer issue than people on both sides think,” or, more simply, “just as there is no crying in baseball, there are no slam-dunks in law.”
John Yoo and David French had a terrific (and deeply respectful) debate on this on a Federalist Society podcast–don’t know if I am allowed to upload it. John and David have both written follow-up pieces, and, to round out the cast of characters, Victor Davis Hanson has weighed in with a slightly different take– criticizing the President for the manner in which the whole thing was handled.
There is general agreement that the declaration of the emergency itself, while not without logical and factual weaknesses–illegal aliens killing our citizens is a horror show, but it’s not even a statistical blip or rounding error compared to the weekly carnage in Chicago–is probably valid under the National Emergencies Act. (Chiefly because the Act is one of the worst congressional punts out there, and provides no standards for defining an emergency, only a process for declaring and reporting one. It is of a piece–not coincidentally, from the same time period–as the War Powers Act.)
Declaring an emergency only “unlocks,” as many have phrased it, certain other courses of action. But not every course of action is created equal. For example, if the national emergency is an onslaught by MS-13, the President could not respond by closing down all public transportation in Chicago!
So that brings us to the Military Construction statute. Is the emergency at the Southern Border something that requires the use of the Armed Forces? There are no slam-dunks in law, and it would not be absurd to say yes, but the far stronger answer is NO. It is true that the President could deploy troops for this purpose, and he has done so in the past, but it would be what lawyers call a “bootstrap” to turn that into a situation in which use of the military is required.
If that is correct, then it makes the “construction necessary to support” those troops argument a double bootstrap. Not a crazy argument; just wrong, in my view.
Victor Davis Hanson thought that the President should have just quietly gone about the business of moving funds around, rather than take such an in-your-face victory lap. I’m with Victor on this one too, but for a slightly different reason. Just when Trump had done well in the State of the Union, here he committed one unforced error after another–like admitting that he didn’t really “need” the money, he just wanted it to speed things up! Some emergency.
If the public record wasn’t so clear to the contrary, I would have said that the President was drunk! Or maybe in a fugue state!
FWIW Clifford, I said arrogate, not arrogant. Comment 24 sums up nicely how there are in fact reasonable disputes to your position. To be clear, I find your argument reasoned as well and am chagrined you don’t extend a similar courtesy.
Except that the US Flag means that upon the waters, that vessel is US territory. Piracy is a direct assault upon US sovereignty.
Technically, yes, but an order of magnitude different. What did Jefferson do. Built a navy and went to war with the Barbary pirates — and I believe there might have been a financial settlement given to the pirate governments as well. This is what this declaration of emergency is dealing with, but not in any way what it was doing. It was playing with money and freezing bank accounts.