With respect to the Border Deal, most of you are aware of the headline, as stated above, but, when it comes to evaluating the deal, remember, “the devil is in the details.” Almost everyone is happy that Congress was able to put together a deal to avert another government shutdown. It would have been very bad on many levels. Wall Street, the most objective arbiter I know, loves it. As I write this at mid-day the DJI is up over 200 points.
But, while you’re busy celebrating remember Congress put the Border Bill, some 1,000+ pages of it, together in a rush, under extreme pressure, and few, if any, have even read it. We have no idea of the fine points, but you can be sure they will surface eventually. For example, it has been reported that there is a provision that sponsors or potential sponsors cannot be deported. Okay. Doesn’t sound too bad, but what is the definition of a “sponsor.” I heard that anyone can declare himself a “potential sponsor.” Theoretically, a gang member, or any other adult migrant for that matter, could convince or intimidate a minor migrant into agreeing to designate him as their “sponsor,” and then he cannot be deported. If that’s true, the GOP got snookered, badly.
As an illustration of a hidden, significant, “detail,” I recall the story I heard about the origin of the 401k. Were it not for this provision, salaried persons, especially those without pensions, would not have been able to accumulate the funds for a comfortable retirement. My understanding is that it was an obscure, last minute, “pork” add-on to a tax bill. Some CPA found it, used it for his clients, and it spread to common usage. Point being, we do not know what’s in the Border Bill, but eventually we will find out, good, bad or indifferent.
The primary point of this blog, however, is the National Emergency. Already, it has provoked an outcry in some quarters, and it is sure to be challenged in court. (1) What, exactly, is a “NE?” (2) Does the president have the constitutional authority to declare one? (3) How many and under what circumstances have they been declared? (4) Do we have any outstanding presently? Good questions, keep reading.
1. According to Wikipedia a NE is “a state of emergency resulting from a danger or threat of danger to a nation.” We can debate whether or not the situation at the southern border, or any particular situation, meets that standard, but Mr. Trump thinks it does, and his is the opinion that counts.
2. Congress passed the NE Act in 1975. It authorizes the president to declare a NE, which triggers a slew of events. In order to undo a NE Congress must pass a joint resolution. Such JR would require either a two-thirds vote or the president’s approval. Neither scenario is likely in this situation. Court challenges are likely. A lower, “friendly” court may rule against Mr. Trump, but, ultimately, he will prevail. In my research, I was unable to find one case where the Supreme Court reversed such an order.
3. According to Wikipedia some 60 NEs have been declared and 32 are active, including today’s. According to Kim Scheppele, a professor at Princeton University’s Center for Human Values, they’re “absolutely common.” Historically, presidents have declared them “for all kinds of things,” even before the passage of the aforementioned NEA. The first recorded one was by none other than George Washington who employed it to take over state militias to put down the Whiskey Rebellion in 1792. During the Civil War President Lincoln declared a NE as authority to blockade certain ports of the Confederacy. More recently, George Bush declared a NE after the 9/11 terrorist attacks, and Barack Obama declared one to combat the H1N1 swine flu pandemic in 2009. Very often, Presidents have declared NEs of broad scope and vague duration with little of no Congressional oversight. I am not defending that custom, just pointing out that Congressional griping over this one will likely fall on deaf ears, legally.
4. As I said, Mr. Trump did not invent this tactic. Today’s NE makes 32 outstanding.
CONCLUSION
The NY Times has published an article the gist of which will no doubt be echoed on much of the rest of the news media. It makes for interesting reading, if only to get a liberal opinion. It lists six “takeaways” from Mr. Trump’s action. Of course, they are negative.
1. He will go to “almost any length to appease his base.”
2. Dems cannot stop him, but they can “make it awkward.”
3. Diverting funds from elsewhere could “make new enemies.”
4. Expect court challenges.
5. “Watch how Nancy Pelosi responds.”
6. He provided his challengers with “an argument.”
As I said, Mr. Trump will be criticized by his enemies, but so what? He is used to that, as are all politicians. On the other hand, he will be fulfilling a campaign promise. The people elected him to secure the border, and that is what he is doing. Some of you may not agree with his actions or opinions, regarding border security, which is your right, but he is well within his constitutional authority to take the action he has today.
We Built It Blog by Larry Jacob 