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Thread: What authority does the President have under the National Emergency Act

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    What authority does the President have under the National Emergency Act

    What authority does the President have under the National Emergency Act

    In the several threads about the wall, the National Emergency Act and presidential authority, we have discussed this in general without specific reference to which of the 136 possible authorities the president may rely on. Here is an article from the ABA that goes into specifics giving us something to discuss.

    President Donald Trump could rely on the National Emergencies Act of 1976 to build a border wall without approval from Congress, but the move would likely face challenges in court.

    The law regulates how presidents can exercise emergency powers that are given to him in hundreds of specific statutes, report the New York Times, the Wall Street Journal, USA Today, the Washington Post and Lawfare. The Brennan Center for Justice at the New York University School of Law has identified 136 statutory powers available to presidents in national emergencies.
    Most of these laws are just siting there waiting to be used.

    Note: I don't know why the ABA Journal "cites" to the statutes as it does. Few would know that "Section 2808 on the federal law on the role of the armed forces" is 10 USC sec. 2808. Title 33 covers navigational waters, so the reference below is 33 USC 2293.

    • Section 2808 on the federal law on the role of armed forces, which permits the secretary of defense to begin military construction projects that aren’t authorized by law, using money appropriated for other military construction projects. Such projects must be “necessary to support such use of the armed forces.” Unnamed congressional aides told the Wall Street Journal and the Washington Post that billions in funds might be available in the Pentagon budget for the border wall.

    • Section 2803 of the same armed forces law, which allows some funds appropriated for military construction to be spent on projects that aren’t specifically authorized if they are used for national security and protecting U.S. troops.


    • Section 2293 of the federal law on navigable waters, which governs reprogramming during national emergencies. The law allows the Army secretary to stop work on Army civil works projects during a national emergency and redirect troops and resources to “authorized civil works, military construction and civil defense projects that are essential to the national defense.”


    • Section 284 of the U.S. code on the role of armed forces, which authorizes the secretary of defense to provide support for counterdrug activities and to block drug smuggling. The law, which does not require declaration of a national emergency, allows construction of roads and fences.


    Trump’s deployment of troops to the border this past fall may have helped lay the groundwork for an emergency declaration under Section 2808, according to Lawfare.


    Section 284 is not only a separate possible ground for Trump to take action; it also could be a building block for Trump to assert power under Section 2293, which requires the wall to be an authorized project. It could be argued that Section 284’s reference to a drug-smuggling fence constitutes the wall authorization that is needed under 2293, according to an expert who spoke with the New York Times.
    So here are two statutory authorities that can possibly be used to assert a national emergency. 10 USC sec. 2808 and 10 USC sec. 284. Personally I think section 2808 is better because the problem at the border is broader than drug smuggling. Also drug smugglers are more likely to defeat a wall than simple migrants, making the practicality of a wall less persuasive.

    BUT

    If the president takes such a tack, will it hold up in court?
    I think yes. I don't believe a court is going to say it knows better than the executive what a national emergency is. In a sense it would be shocking for a court to assume it has that authority.

    These law professors agree:

    Steve Vladeck, a law professor at the University of Texas at Austin, told the Wall Street Journal that courts are unlikely to second guess a president’s judgment on what constitutes a national emergency because the statutes don’t provide a definition.

    And the Trump administration could mount serious arguments backing up his emergency powers, according to William C. Banks, a law professor at Syracuse University who spoke with the New York Times.
    However this one (I assume she is a lawyer) does not:

    But Elizabeth Goitein, who oversaw the Brennan Center study, told the New York Times she thinks Trump “would be in big trouble” if any court decided it had the power to review an emergency declaration. “I think it would be an abuse of power to declare an emergency where none exists,” she said.
    I think her reasoning is flawed. She starts with a conclusion - that no emergency exists so saying that there is is an abuse of power. Well, where is the legal analysis that is suppose to come before that sentence. Even more importantly, the first thing a court does when looking at a case is ask whether it has jurisdiction to hear the matter.

    Courts have long avoided putting themselves in the place of a president, the head of an agency, or military commanders where there is a broad latitude for discretion, as there is here. Since there is no legal definition of what a national emergency is, a court will likely defer to the president. To provide its own definition would be shocking and would most certainly be overturned on appeal. (At the appellate level or at SCOTUS).
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    I would think a national emergency would go straight to the Supreme Court.
    Liberals are a clear and present danger to our freedom and our society and our morals.

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    Quote Originally Posted by Captdon View Post
    I would think a national emergency would go straight to the Supreme Court.
    It is rare for SCOTUS to be the tier of fact (trial court). They like a developed record to work with.
    Molon labe
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    The president has defined the emergency as the Democrats not giving him what he wants.

    Good luck with that.

    There's no actual national emergency, let alone one that meets the requirement for Trump to do what he wants.

    https://www.nationalreview.com/2019/...nt-of-the-law/

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    Quote Originally Posted by alexa View Post
    The president has defined the emergency as the Democrats not giving him what he wants.

    Good luck with that.

    There's no actual national emergency, let alone one that meets the requirement for Trump to do what he wants.

    https://www.nationalreview.com/2019/...nt-of-the-law/
    What is the statutory definition of national emergency under the national emergency act?
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    I don't see how it gets directly to the SCOTUS. I do think that it is a national emergency. I think that if it was a democrat idea we'd have the wall built already. I don't know enough about the ability of the president to declare a NE but I want him to stay well within the bounds of the law.
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    Quote Originally Posted by DGUtley View Post
    I don't see how it gets directly to the SCOTUS. I do think that it is a national emergency. I think that if it was a democrat idea we'd have the wall built already. I don't know enough about the ability of the president to declare a NE but I want him to stay well within the bounds of the law.
    I want President Trump to go right up to the sharp edges of the law. Build a wall. Build roads. Build command centers. Put in electrical infrastructure. Put in holding pens.

    And sweep through California, Arizona, New Mexico, and Texas to seek out, capture, biometrically document and deport every illegal alien the Feds can find. Let this national emergency run its course for a year or more.
    Call your state legislators and insist they approve the Article V convention of States to propose amendments.


    I pledge allegiance to the Constitution as written and understood by this nation's founders, and to the Republic it created, an indivisible union of sovereign States, with liberty and justice for all.

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    The problem with a "national emergency" is that it's totally arbitrary and can easily be used as a power grab to do as you wish

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    Quote Originally Posted by The Xl View Post
    The problem with a "national emergency" is that it's totally arbitrary and can easily be used as a power grab to do as you wish
    The Congress, no doubt, recognized its inability to act. Fortunately, the power was granted, not grabbed. And this time the power will be used to defend American citizens from Democrat politicians and illegal alien invaders. It is a twofer.
    Call your state legislators and insist they approve the Article V convention of States to propose amendments.


    I pledge allegiance to the Constitution as written and understood by this nation's founders, and to the Republic it created, an indivisible union of sovereign States, with liberty and justice for all.

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    Quote Originally Posted by alexa View Post
    The president has defined the emergency as the Democrats not giving him what he wants.

    Good luck with that.

    There's no actual national emergency, let alone one that meets the requirement for Trump to do what he wants.

    https://www.nationalreview.com/2019/...nt-of-the-law/
    Do you think that the national emergencies declared by Obama qualify as actual emergencies?

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