President Trump’s Emergency Declaration Will Survive Lawsuits

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According to Rep. Adam Smith (D-Wash.), the new Chairman of the House Armed Services Committee, President Donald Trump possesses the lawful authority to use emergency powers to fund and build a barrier at the border.

In response to an interview question about the legality of the president’s recent emergency declaration, Smith told host of ABC’s “This Week” George Stephanopoulos, “Unfortunately, the short answer is yes. There is a provision in law that says the president can declare an emergency. It’s been done a number of times…” The congressman added that the president would be the recipient of a court challenge.

The lawsuit avalanche has just begun. More than a dozen states are filing suits challenging the emergency declaration. A case in point is the recent one declared by California Attorney General Xavier Becerra.

It is simply a fact that under existing law the suits should eventually lose when the U.S. Supreme Court ultimately gets the case.

Even Democrats such as Smith and various liberal legal commentators have admitted that President Trump has the statutory authority to declare the border crisis to be a national emergency, and he will therefore be able to adequately fund a border barrier.

The declaration by a president of a national emergency is nothing new. There have been 58 national emergencies declared since the National Emergencies Act of 1976 (NEA) was signed into law. Currently, there are 31 active national emergencies in effect. President Bill Clinton declared 17, and President Barack Obama declared 13 of them.

National emergencies exist today in remote places such as Yemen, Lebanon, Zimbabwe, Sierra Leone, Burundi, Myanmar, and Somalia. The current national emergency declared by President Trump deals with a crisis occurring on the U.S. Southern border.

The NEA was originally passed to rein in the authority of the president to use emergency power. The law requires the occupant of the Oval Office to renew declarations of emergencies annually, and it gives Congress the potential ability to terminate a state of emergency. Congress has routinely renewed most past declared emergencies without raising meaningful objections or litigation.

In order to terminate President Trump’s recent declaration of emergency, Congress must pass a joint resolution and submit it to the president for his signature. If the president were to veto the resolution, as President Trump would most certainly be expected to do, Congress would have to come up with a veto-proof supermajority to end the state of the emergency.

When Congress, via the NEA, granted the president the power to declare a national emergency, it did not define the meaning of the phrase. The power of any president to declare a national emergency ends up being very broad.

President Trump’s authority to do so does not arise solely from the NEA, though, but also from the presidential power to protect the nation and control the orderly process of entry into the United States.

Supreme Court precedent recognizes the power of the executive branch to control the admission and exclusion of foreign nationals and generally views this authority as mostly unsusceptible to interference by courts.

The funding for a border barrier has already been given the blessing of Congress via enacted legislation that was signed into law. The law of the land, as stated in the Secure Fence Act of 2006, is that a border barrier shall be built along the U.S. Southern border.

Democrats are alleging that President Trump’s emergency declaration is seeking to use an emergency as a means to obtain what Congress had refused to authorize. However, Democrats are evidently more than willing to have the judicial branch step in to end a declared emergency, rather than follow a law that specifically states how Congress is mandated to carry out the process of overriding an emergency declaration.

There was no mass rush to file lawsuits and no cries of abuse of power on the part of Democrats when President Obama, after stating that he did not possess the legal authority to do so, proceeded to bypass Congress after it refused to pass immigration reform. He simply created with a stroke of his pen a program that fundamentally altered immigration laws.

The former president additionally funded some significant parts of the Affordable Care Act, after Congress had denied him such funding. And he also funded the undeclared war in Libya, after Congress had turned down his funding request.

In is clearly apparent that Democrats are not concerned with the law, but rather they are in opposition to any kind of border barrier of which President Trump might be in favor. This is simply due to the fact that President Trump made the wall a centerpiece promise during his 2016 presidential campaign. Democrats have been relishing in anything they believe might harm him politically, and they continue to do so.

The ugly reality is that the primary reason Democrats are seeking to stop the construction of any type of border barrier is that barriers work, and they do not want anything to be implemented that might curb the mass migration of their would-be voters.

Trump Critics Complain over Troops at the Border

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Since the Trump administration authorized the military to use force along the US-Mexico border, many are raising legal challenges to the president’s border policy by invoking a 19th century law, the Posse Comitatus Act, that generally prohibits the federal government from using the military for domestic law enforcement functions unless specifically authorized by the Constitution or Congress.

According to Secretary of Defense James Mattis, over 5,000 active duty troops are now engaged in supporting missions along the border in Texas, Arizona, and California.

The actions authorized by the White House are those the Secretary of Defense “determines are reasonably necessary” including “a show or use of force, crowd control, temporary detention, and cursory search.” The military has also been given the option to use lethal force, if conditions make it necessary to do so.

It is therefore not surprising that the same media panelists who routinely attack President Trump are ranting about the president violating the Posse Comitatus Act, which stops U.S. military from involvement in most civilian law enforcement roles.

Secretary Mattis stressed the need to keep the military away from civilian law enforcement roles.

“We are not doing law enforcement,” Mattis told the press. “We do not have arrest authority.”

Mattis indicated that, because National Guard troops are also present at the border, the governors of affiliated states could give them arrest authority.

“We’ll decide if it’s appropriate for the military, and at that point, things like Posse Comitatus obviously are in play,” Mattis said. “We’ll stay in strict accordance with the law.”

The Posse Comitatus Act of 1878 was signed into law by President Rutherford B. Hayes on June 18, 1878. It was passed as an amendment to an army appropriation bill following the end of Reconstruction and was subsequently amended in 1956 and 1981.

The Constitution grants the president the power to utilize the armed forces to defend the nation’s territory, as well as to use the military to support civil authorities in preserving the peace.

The Posse Comitatus Act limits but does not eliminate the power of the president to declare “martial law” when local law enforcement and court systems cannot properly function. In such cases, all civilian police powers are assumed by the military. The president must also be able to deploy the military to counter insurrections, rebellions, or invasions.

In addition to the exceptions to Posse Comitatus, which allow the military to support civilian authorities in instances such as national disasters or terrorist acts, a federal law, Title 10, Chapter 13 of the U.S. code, is particularly pertinent.

When the president determines that unlawful “obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings,” the president has the power to “use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”

Thousands of foreign nationals intend to engage in an unlawful incursion of U.S. territory, and some of them have already demonstrated a willingness to resort to violence in disregard of the laws of Mexico. Homeland Security Secretary Kirstjen Nielsen has said that as many as 500 criminals and gang members are within the groups heading towards the border. The territorial protection of the nation gives the president the authority to act as commander-in-chief in the case at hand.

Also contained in Chapter 13 is additional power of the president to use the armed forces. The language further states that the president “shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy” as long as the insurrection, domestic violence, unlawful combination, or conspiracy “so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection…”

If President Trump has reasonable grounds to believe that the thousands of foreign nationals who reportedly intend to “rush the border” would overwhelm the resources of the border states, and moreover pose a security threat to the border patrol, he is empowered to “take such measures as he considers necessary.”

In the executed directive that granted military authority, Chief of Staff Gen. John Kelly wrote that “credible evidence and intelligence” indicated that the thousands of foreign nationals, many of whom are now in Tijuana, Mexico, “may prompt incidents of violence and disorder” that could threaten border officials.

Once again the nation may witness the filing of lawsuits with pre-selected liberal federal district court judges, seeking to have the power of the commander-in-chief curtailed.

However, as has also been seen before, it is highly likely that the president’s power to use the military to protect the nation’s citizens, the nation’s territory, and the nation’s sovereignty will be held to be lawful.