Sunday, February 17, 2019

Courts Need to Block Trump's 'End Run' on Constitution

      President Trump knew he was on shaky legal ground when he declared a national emergency in order to build his southern border wall with funds Congress appropriated for other purposes. The Justice Department warned of likely holdups from the inevitable legal challenges in the courts, but Trump went ahead confident of getting a "fair shake" at the Supreme Court with two justices owing their posts to him.
      Opponents had no difficulty in refuting the rationales that Trump claimed for declaring an emergency at the country's southern border and for claiming miles and miles of some kind of barrier as the solution to the smuggling of illegal drugs into the United States. Illegal border crossings in 2016 were 91 percent below the level in 2001, according to the Department of Homeland Security — hardly evidence of a national emergency. And, as several studies have shown, the crime rate for legal or illegal immigrants is lower than the crime rate for native-born citizens — in contradiction of Trump's demagoguery about murderers and rapists flooding into the United States across the southern border.
      In addition, more than 80 percent of the illegal drugs smuggled into the United States enter undetected through official ports of entry, not at the supposedly open southern border. Whether solid concrete or slatted steel, a border wall will have little effect on drug smugglers other than to divert funds from more productive detection and interdiction techniques.
      Tellingly, Trump himself gave the critics legal grounds for attacking his action toward the end of the rambling hour-long announcement of the move in the White House Rose Garden [Feb. 15]. "I could do the wall over a longer period of time," Trump said. "I didn't need to do this, but I'd rather do it much faster."
      Lawyers with Public Citizen included Trump's quote in the 19-page complaint they filed challenging the president's move hours later in federal district court in Washington. The suit, filed as Alvarez v. Trump in behalf of South Texas landowners and the local Audubon Society chapter, traces the history of Congress's refusal in December and again in February to approve the $5.7 billion Trump requested to construct the wall.  "[A] disagreement between the President and Congress about how to spend money does not constitute an emergency authorizing unilateral executive action," the suit states.
      Trump helped critics even more by his own actions after signing the declaration back in the Oval Office. Critics quickly noted on Twitter and elsewhere that Trump followed the declaration of a national emergency by flying to Florida for golf. Other critics took to Facebook to mark themselves "safe" during the national emergency on the southern border.
      However weak and laughable Trump's action may be, the legal challenge is by no means a slam dunk. The National Emergencies Act of 1976 establishes a procedure for the president to follow but imposes no specific requirements for a supposed national emergency. On that score, even critical observers speculated that federal courts were unlikely to second-guess the president's determination.
      The administration is more vulnerable, observers agree, in taking money that Congress has appropriated to the Defense Department for stated purposes and redirecting the funds to a purpose that Congress has specifically rejected. That would seem to run afoul of the leading Supreme Court precedent on how to resolve a clash between Congress's Article I powers and the president's Article II powers.
      The United States was at war in Korea in 1952 when the Supreme Court laid down the principle in Youngstown Sheet & Tube Co. v. Sawyer (1952) that the president has no inherent or emergency power to contradict a law enacted by Congress. President Harry Truman had ordered his secretary of Commerce to seize the nation's steel mills to keep them operating despite a strike, but the Court found he had no authority to do so after Congress had specifically refused to grant the president that power to deal with nationwide strikes.
      Justice Robert H. Jackson's famous concurring opinion in the case acknowledged what he called a "zone of twilight" of presidential authority if Congress has not addressed a particular issue. But the president's power "is at its lowest ebb," Jackson concluded, "[w]hen the president takes measures incompatible with the express or implied will of Congress."
      Trump's move also seems to run afoul of the Supreme Court's more recent decision to bar the president from exercising a so-called line item veto. The 6-3 decision in Clinton v. City of New York (1998) found that the president has no power to pencil out individual budget items from a law as passed by Congress even if Congress itself had passed a law authorizing that procedure. Trump's plan to take $6 billion from Defense Department appropriations to build the wall seems equally outside his authority.
      Trump acknowledged a likely setback at the circuit court level, but he predicted a win at the Supreme Court like the 5-4 ruling that upheld his Muslim travel ban in June 2018 after a string of defeats in lower courts. Chief Justice John Roberts's majority opinion in that case, Trump v. Hawaii, relied heavily on immigration laws with broad discretion for presidential power. Trump thinks the national emergency law vests him with equally broad power, but the New York Times pointed to Trump's fallacy with a headline that described the national emergency power as having been invoked "many times before, but never before as an end run."

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