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Jonah Goldberg and Charlie Cooke are not pleased
Charlie and Jonah are not pleased with Trump’s decision to declare a national emergency in order to get the border wall built. Charlie complains that it is wrong to ask Congress and then ignore their answer. It seems contradictory and out of order to him. But there is nothing wrong with seeking consensus even when consensus is not required by law.
I permit my wife to charge things to our credit account even when I disagree with its purpose – but things go more smoothly when we discuss it ahead of time. I do not withdraw the privilege already granted to her just because I disagree with a purchase that represents a small fraction of our spending. If she were to buy a leopard-print couch for the living room at a cost of a month’s pay – that’s a problem. If I agree to her getting a manicure at the nail salon and she splurges on leopard-spot fingernails — happy wife, happy life.
The border wall spending is less than 0.14% of our annual spending. It is money already allocated to be spent. Congress refused to allocate more (a shame — but that’s a consequence of the 2018 election). It did not explicitly withdraw the pre-allocated funds, however. Nor did it repeal Presidential authority to declare a national emergency.
Jonah calls Trump’s action “horrifying.” There is nothing horrifying about this. Just because he never bothered to notice this Presidential power until Trump attempted to use it for a controversial purpose does not make this existing authority horrifying. It’s the law. He has exercised it in accordance with the way statutes are written (or the courts will say otherwise). It’s a power presidents were given.
Trump is not a second-class President. He does not have less power than previous Presidents, and your particular lack of confidence in the current President does not change his power to exercise these powers.
And the big difference between this and Obama’s unconstitutional DAPA and DACA programs, Obama lacked statutory authority. In the case of DAPA, the courts said so explicitly.
There is a big difference between passing a law by Presidential order and repurposing allocated funds – funds allocated by Congressional majority – by dint of powers granted to him by Congressional majority.
President Trump is not legislating in this case and is not allocating funds.
Moreover, we have a mechanism for Congress to override Trump’s emergency declaration. If Trump is overridden by Congressional supermajorities and still attempts to repurpose the funds, then we will have a problem.
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Charlie wants the rest of us to be like Chevy Chase Maryland and Jonah just doesn’t like Trump (same as Rob Long). What do you expect?
I thought I couldn’t think lower of Jonah than I already did. However, he keeps scratching new registry marks on my dislike scale. Stop already JG.
Who is Charlie Cook?
Jonah is doubling down on stupid at this point.
No one in Congress was elected by all the people, only the President represents the entire country. Yes I know he didn’t win the popular vote but he won the majority of states. Separate congressmen and senators all have separate constituents and may vote what they think is best for those constituents but Trump thinks building the wall is what is best for the entire country.
Isn’t it significant that when Congress included the override provision it stipulated a super-majority ? This was when Ford was POTUS (National Emergencies Act (NEA) (Pub.L. 94–412, 90 Stat. 1255, enacted September 14, 1976, codified at 50 U.S.C. § 1601–1651) is a United States federal law passed to end all previous national emergencies and to formalize the emergency powers of the President).
An unelected President was in office yet Congress passed the law with a higher hurdle for them to quash a presidential declaration of emergency.
Article II power to defend and protect was at that time still given deference. Now, the left runs to the courthouse with the expectation they can change the law.
I think that the case may turn on the issue of justiciability, and specifically the political question doctrine. Here is a good summary from Wikipedia. The leading SCOTUS cases are Baker v. Carr from 1962 (here) and Zivotofsky v. Clinton from 2012 (here).
Zivotofsky was the case involving a statute requiring the State Department to recognize Jerusalem as the capital of Israel. This decision in the case was limited to overturning the decision of the lower courts that this was a nonjusticiable political question. A subsequent decision in 2015, Zivotosky v. Kerry, held the statute in question unconstitutional because of “the exclusive power of the President to control recognition determinations, including formal statements by the Executive Branch acknowledging the legitimacy of a state or government and its territorial bounds.”
The immediate result was that Congress could not force the Obama Administration to recognize Jerusalem as the capital of Israel. The later result was that President Trump could, and did, do so.
The Zivotofsky v. Clinton majority did not specifically address the question of whether the political question doctrine could apply to statutory interpretation. Breyer, Sotomayor, and Alito wrote separately, each specifically stating that the political question doctrine could so apply.
Sotomayor’s concurring opinion in Zivotofsky includes a good summary of the Baker v. Carr standards:
Note that the bolded “or” makes it clear that any of these circumstances could result in nonjusticiability due to the political question doctrine.
On the issue of President Trump’s declaration of emergency, it seems to me that the statute specifically commits the determination of the existence of an emergency to the President. My initial opinion is that this makes the emergency declaration nonjusticiable, as a political question, under all of the Baker factors except number (5).
I don’t recall this being mentioned in the otherwise fine discussion between Professors Epstein and Yoo on the issue in the most recent Law Talk.
So my guess is that if Trump wants to help shore up the Old Wall around Old Jerusalem, he will be permitted to do it.
But if he continues to seek the use of emergency powers to build or firm up a wall here on our southern borders, which would help Americans, he has to face serious scrutiny about whether or not it is a real emergency. Which is totally in the world view of the beholder.
My lib friends in New Jersey, Missouri and Oregon, which are regions of the nation still unaffected by rampant immigration, are all for more immigration. As are many people whose wealth protects them from such extreme situations as poorer people who are watching their rent double, even as the tenement apartments they live in become less habitable. And a friend whose daughter works in a hospital in El Paso TX tells me that the situation with hospitals anywhere near our southern border is verging on catastrophic.
Go [expletive] figure!
Wait long enough and this trend will go nationwide.
There is another issue even if Trump gets through the “emergency” hurdle (which I think he will). The spending he seeks is, according to the administration, authorized under Section 2808. That section authorizes emergency spending only for “military construction”, a defined term, and it is questionable whether Trump’s border construction meets the definition.
Are you suggesting our military cannot construct an obstacle to prevent illegal entry through our border ?
I’m suggesting the definition in the statute might not allow it. I think it is a tougher question than the President’s legal authority to declare an emergency.
Jonah hates Trump. Charlie is really honors the Constitution and he thinks an emergency declaration is overstepping the bounds. He is wrong.
Two important points: (1) Trump has not signed the emergency order yet (2) there is very little money available ~$1.2B. There is more unspent money available from 10-284 authority.
Trump should focus on El Chapo act (got to be an 80/20 thing) and asylum reform. Both take legislation, but getting legislation passed is why he has a bully pulpit. Hammer it for rest of the fiscal year and make Dems own every death from drugs, MS13, and trafficking.
That is the plan. In 1984, we were told in Marin County Calif that it was only 4,000 Guatemalans who had suffered through their civil war who wanted to come here. So the folks in the SF Bay area opposed ICE coming into various neighborhoods, and we insisted on open borders. Within 5 years, the number of new immigrants to the San Francisco area was close to a half a million people.
Once a region of people realizes the bait and switch, it is all too late. The hospitals are no longer community-operated institutions, as the nurses, usually the LVN’s are replaced with nursing aides. These aides don’t even speak English, and most got their education relating to health matters in nursing homes where the test results are altered. So everyone who takes the tests passes the tests and then is certified. Calif has specific Civil Codes that are on the books that health workers employed in hospitals must speak English fluently, but the laws are ignored.
The schools then have for teachers only these people who speak a weird mix of pidgin English/Spanish that no one, even fluent Spanish speakers, can figure out. Everyone, even low income parents, scrambles to get their kids in private schools.
But to explain this to people who have not yet experienced it is to be labelled an anti-diversity White Supremacist. I have no doubt at all that the UN’s agenda to move 250 million people from third world nations to Europe and America is expected to go along unimpeded until the UN folks have succeeded in turning every industrialized nation into a third world banana republic.
Oh yes I do get that one quite often also.
Although I have no clue who Charlie Cook is, I’m willing to listen to anyone, including Jonah, who acknowledges a couple of facts as a preface to the discussion: 1) Trump was duly elected President after running a campaign in which a wall was a known centerpiece; 2) Despite this, Democrats who had previously endorsed “border security” and even a wall reversed course to oppose same because . . . Trump; and 3) the use of expansive and potentially unconstitutional measures has a long history in the Presidency to get what one wants, subject to letting the courts sort it out.
Editor of NRO, British bloke who recently obtained American citizenship, 2A expert, golf-cart modder, and a fine fellow.
Thank you. I foolishly didn’t recognize him without the more formal given name and middle initials.
After all, how constitutional was the the Fast and Furious program under Obama?
He lost the popular vote and didn’t do so hot in 2018, so its time to move on from past glories since he had 2 years to get this done.
Trump will lose in court, so don’t get too excited. No arguments in this thread would pass muster with a judge. Even worse than Obama’s on DAPA. which also lost in the courts after much false hope from the Left. Just shows how bad Trump’s case really is.
Thankfully. smart conservatives like Jonah and Charlie (and John Roberts) can’t be scared into supporting every dumb idea from an orange reality star.
The great and wonderful Oz has spoken.
Please let us know which of his dumb ideas would make your top 10. top 5? gold, silver, bronze?
I wasn’t aware that serving a four-year term after winning a presidential election was a “past glory.” But thanks for trying a constitutional rewrite that exceeds anything Trump could come up with. And are we still clinging to that “lost the popular vote” canard?
Perhaps he will lose in court. Or did you not read my #3 above?
Do smart conservatives also use terms like “orange reality star”?
That’s possible, but Goldberg is a pretty sharp guy, and he’s consistently intellectual and liberal–meaning that he doesn’t make a habit of dishonestly or stupidly creating principles ad hoc to justify concrete opinions day to day.
You are employing “what-aboutism”, a form of ad hominem attack used to make an accusation of hypocrisy. Ad hominem attack is not necessarily ad hominem argument (a form of fallacious argument). I don’t necessarily have a problem with using it in an opinion piece if
Why didn’t Trump ram this through while he and Republican majorities in both the Senate and the House? Marco Rubio identified funds that Trump has authority to spend , that could be spent on the wall without a national emergency. Why doesn’t Trump build many miles of wall with that money before declaring a national emergency? Not clear to me that the national emergency is really about building a wall.
Why didn’t the idiot twins Ryan and McConnell , the leaders of the House and Senate, and the alleged “professionals” take the lead? Instead they sabotaged at every turn.
In For a second (but only a second) I thought this was another post about the wall, executive action etc., maybe refuting some arguments made by Goldberg or Cooke.
But that’s not what this post is. It’s just another complaint about pundits who are disliked by the more ardent Trump supporters. I think it’s a fact that Trump occupies a lot of real estate in his opponents heads, but I chuckle every time I see the headline “Jonah Goldberg says X…” in American Greatness et al. because Goldberg seems to have a fair bit of property in the heads of Trump fans.
Fwiw, Goldberg and Cooke skip the statutory interpretation and focus on the obvious fact that Congress debated the issue of wall spending, denied the president his desires and then the president promptly ignored Congress.
There’s more to their argument than mere statutory construction. And on that point, I think conservatives (at least those who support the Constitution) should be less eager to exploit every ambiguity in the USC and CFR to its outer limit in pursuit of executive power.
Putting aside the legality, I believe the declaration of national emergency works well politically for Trump in that Trump makes it clear in the most public way possible he is committed to border security by building more border wall. This was a key campaign promise and an important reason many supported Trump.
The very vocal opposition to Trump’s declaration of national emergency almost inadvertently acts as paid advertising for Trump’s commitment to national security and bolsters his political standing in that regard. If the courts overrule, Trump still maintains his political position as having made the effort to secure the border, while those opposing the declaration and by inference the wall building leave themselves open politically to not being committed to border security.
I think that this argument about wall spending being denied is legally incorrect. Granted, Prof. Epstein does disagree with me.
I realize that the situation has a superficial similarity to Youngstown Sheet & Tube. But here, the President has other statutory authority to use the funds.
Here, the argument would have to be that the passage of the recent appropriation deal somehow changes the meaning of the National Emergencies Act passed in 1976, by implication. I don’t think that this is a viable legal argument.