Trump’s National Emergency: Will There Be A Constitution Left To Defend?

Everything you need to know about the Constitutionality of the National Emergency Declaration for The Border Wall and the underlying codes to support it or not.

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Trump National Emergency Border Wall Funding and the Constitution

The military is currently being used to try to secure the border in the absence of border wall funding.

How Many National Emergencies Have There Been?

National Emergency Act of 1976

This Act was signed into law by President Gerald Ford. According to the Federal Register, 58 national emergencies have been declared since it's signing in 1976 with 31 still in effect.

Some continue export control regulations, enforce economic sanctions or address human rights abuses. President George W. Bush declared a national emergency three days after 9/11 that has been extended annually, including by Trump.

Many other President's in the recent past have invoked this declaration.

The Conservative Tribune reported:
"As it turns out, there are currently 31 ongoing national emergencies over which the president wields certain authorities, the first of which has been in existence since 1979 and is one of only two emergencies declared by Carter.

There were a total of six national emergencies during former President Ronald Reagan’s tenure, as well as four more during the administration of former President George H.W. Bush, all of which have ended.
Former President Bill Clinton declared 17 national emergencies — six of which remain in effect — while former President George W. Bush declared 12 national emergencies, of which 10 remain ongoing."

"Then we get to former President Barack Obama, who declared 13 national emergencies, 11 of which continue to this day. Thus far, President Trump has declared three active and ongoing national emergencies."

Only now, since Trump is using it, for an "actual emergency, does anyone question the legality of the constitutionality of such a declaration. The "precedent" has clearly been set long before President Trump.

Here's a full list of the currently ongoing National Emergencies that we are living under:
NATIONAL EMERGENCY! Full List Of Ongoing National Emergencies

Is It Legal (the short version)?

It is absolutely legal under the National Emergencies act of 1976 with plenty of precedent and even a Supreme Court Opinion.

Where the fight will be is that this Act also grants the Senate and House the ability to counter with a proclamation. But that has to be signed by the President.

He won't sign it, of course. The Senate and House will then have their 2/3rds majority override authority. Will the Congress be able to get 2/3rds to override the President's veto is where the next fight will come from

If Congress is unable to override the veto then they will proceed to the courts to challenge the constitutionality of the law itself, or more likely that of the underlying codes that Trump must draw from in order to actually do anything with the declaration. This will likely happen concurrently with the former proceedings.

This is where everything gets a lot more complicated. I'll try to explain it all for you.

The declaration of a national emergency in itself carries no real weight. Statutes governing the use of that power and the ability to use funds to act is where the statutory issues really begin.

This is the part that many people do not want to hear, but it's where the situation gets much more complicated and in need of interpretation. That always complicates things.

The President will have to cite certain underlying laws where an emergency is authorized, and under what laws he thinks it can be funded. It's the correlation to these laws that will be challenged in court.

So, now is a good time to go ahead an include the constitutionality of the whole situation as we discuss the statutory laws as well. First, the background and a little history to help you understand the situation.

Background of the National Emergencies Act of 1976 and the history leading up to it

The National Emergencies Act (NEA)  is a United States federal law passed to end all previous national emergencies and to formalize the emergency powers of the President.

The Act empowers the President to activate special powers during a crisis but imposes certain procedural formalities when invoking such powers. These limitations are outlined in underlying codes.

The perceived need for the law arose from the scope and number of laws granting special powers to the executive in times of national emergency.

Congress can terminate an emergency declaration with a joint resolution signed into law, but requires the signature of the President. To override a Presidential veto, 2/3rds majority in both the House and Senate are required.

Powers available under this Act are limited to the 136 emergency powers Congress has defined by law. The purpose of the law was to organize and reduce the effective powers of the President. Previous laws granted the President over 500 various different powers under the umbrella of a national emergency declaration.

The legislation was signed by President Gerald Ford on September 14, 1976. As of March 2019, 59 national emergencies have been declared, more than 31 of which remain in effect.

More History of Nation Emergency Declarations

The first declaration of a National Emergency was by Woodrow Wilson in 1917 that used powers granted within the Act that established the United States Shipping Board.

Congress passed many laws that had powers in them to allow the President to act under a national declaration of emergency. I'm not going to list them all, don't worry, but this is how it got up to over 500 various different ways as we said before.

In 1933, President Roosevelt issued various National Emergencies without citing any underlying legislative code at all. This was challenged and the Supreme Court issued an opinion in Youngstown Sheet & Tube Co. v. Sawyer

This limited the President's power to seize property through such a declaration, but did not revoke his authority to declare a national emergency even without the legislation (some precedent).

Congress finally decided that this all needed to be simplified into one piece of legislation and those powers limited/reduced to 133 specified powers, of which only 13 need Congressional approval.

There still remains other underlying legislation granted to the President by Congress that could also be used to build the wall if needed. But, for the most part, Congress simplified, clarified, and limited much of that in the 1976 Act.

Is Declaring a National Emergency For A Border Wall Constitutional?

This gets a lot more tricky. Absolute Constitutional Purists like KrisAnne Hall will say, simply and emphatically, "NO". The Constitution does not "specifically" authorize the President to do so, nor does it allow for the "delegation of Congressional authority to the Executive branch".

But, it's really not that simple in real life, or in the practical application of powers. The Constitution, for instance, gives the executive branch the ability to "conduct wars" after a declaration by Congress, but does not always specify every means by which to do it.

This gave rise to the "implied powers doctrine" early on in our nation's history, and was even employed by James Madison himself. You can find out more about that in the link below.

Tools To Fight Against State Tyranny And Defend Our Civil Rights; Madison explains.

This is something that constitutional "purist" don't believe in. Unfortunately, without this doctrine, our federal government would not exist because there is not enough specificity in the Constitution for it to satisfy the mandate it's been given.

I said all that to address those purist. But, as always, practical application is much more complicated than that, so I want to address how this emergency will be viewed in our system as it is, whether you like the way the system is or not.

The fact is that the court does recognize this power, and the power of the Congress to delegate it's authority. They will likely end up giving their opinion on how it's implemented, so we better understand what's coming.

There's going to be a number of things at play here:

  • Is there a real national emergency or threat?
  • Congressional Deference
  • Congressional Delegation of Powers
  • Do the laws referenced by the President under such a declaration apply and are they within the scope of such a declaration
  • Judicial Deference and Justiciability
  • Precedent

I want to address each of these points but they will likely be intertwined

We have seen National Emergencies declared for all sorts of things. Obama declared a National Emergency for the swine flu epidemic in 2009, that never was.

But, that doesn't mean it was right, it was just never challenged. Congressional deference gave way to the President in this case and he was not challenged by Congress, or others in court actions, like President Trump will be.

Judicial deference refers to the judiciary given way to the other branches when it comes to certain issues. For instance, in a situation where there is a security threat facing our country and the President needs to take immediate action to stop it.

The court often gives way and allows a great deal of latitude in dealing with the situation. The President is likely privy to a great deal of classified intelligence that the court does not have in order to make such a decision as to whether there is a real threat or not.

Not that they will not limit the President in some way, but are not likely to shoot down such a measure. The court doesn't want to be in a situation where it stops the President from keeping terrorists from flying into the country and blowing up a city, for instance. But, it may put other limitations on him, such as time restraints, or the like. Hostile actions, of course, would carry more weight.

Hawaii v. Trump

We saw this in the immigration challenge in Hawaii v. Trump. Where SCOTUS deferred to the President's authority to stop immigration from certain countries. A power also exercised by former President's like Bush and Obama.

According to Constitutional scholars Professor John C. Yoo and David A. French of the Federalist Society, the case of Hawaii v. Trump shows the court was fairly deferential to POTUS's powers on immigration and shows strong precedent for the President's discretion to declare National Emergencies.

But the issue is with the underlying codes that support Trump's particular border wall emergency. Let's look at those.

10 U.S.C. 2808 & 33 U.S.C. 2293

The precedent set by the courts, even recently support the declarations of national emergencies, but these underlying codes to be used for Trump's border wall have never been used in this way or challenged before.

10 U.S.C. 2808 

The statute says, “In the event of a declaration of war or the declaration [by the President of a national emergency] that requires the use of the armed forces,” I think that’s the key phrase. Then it says, “the Secretary of Defense [can], without regard to [any] other provision of law . . . undertake military construction projects.”

According to Yoo, "And then here’s another key phrase: “that are necessary to support such use of the armed forces.” And so as I understand it—I haven’t looked at the most recent figures—there’s quite a bit of money still sitting in the military construction budget."

Yoo continues, "And 10 U.S.C. § 2808 seems, to me, to allow its use. The interesting question is does the national emergency here require the use of the armed forces, and would the building of a wall be in support? I would think so."

But, there are weaknesses with this underlying code as David French points out. The security issue at the border has been a civilian mission by "practice and by statue".

French also says that the statue requires that the use of "armed forces is required". That would be a case that Trump would have to justify to the court.

Terrorists coming over our border is a "hostile act" that would better justify the use of the military over the migrant caravans, in this case.

33 U.S.C. 2293

David French prefers the use of the underlying code of 33 U.S.C. 2293, though he admits there's potential issues with this as well.

Here's what French has to say about the code:

"The next statute, which has a little bit more flexibility on the front end, but less flexibility on the back end is 33 U.S.C. § 2293. And it has more flexibility in that it says, if there’s a national emergency "that requires or may require use of the armed forces," then the Secretary may divert funds from, essentially, one form of authorized project to another, "authorized civil work, military construction or civil defense project that are essential to the national defense.”

In other words, this is a little broader because it allows you to create things that are not just for the use of the armed forces but are essential to the national defense. But those are two limitations.

One, it has to be authorized, and there’s no authorization for the additional 240 miles of planned border wall. And the idea that it’s essential to the national defense, key words “essential” and “national defense” I think are quite a stretch."

You can read the whole back and forth between YOO and French on this issue in the link to the Federalist Society below:

My Conclusions; And What Trump Must Do To Secure The Border

There are other codes that Trump can cite in his pursuit of a border wall, but the two referenced come up the most.

All-in-all, he will need to frame the argument the there is a crisis, and emergency, as well as he can. We have never seen an emergency framed quite this way, so in that sense there is no "precedent" for it.

After reading this, now I hope you understand why the Trump administration, and his opponents, are framing things the way that they are in the media, and that it will help you understand those motivations and why those particular arguments are necessary.

We need to do more than just say, "Well Obama did this, or that". That is not an argument at all. We need to show why the situation is an emergency.

Terrorists, criminals, the incredible economic impact illegals are having on our economy, etc. Those are the arguments that need to be framed. Fill your news feeds on social media with this kind of information. It is what will be important.

My personal opinion is that we most definitely need to secure the border. I think it's an emergency. I think, given the state's propensity to declare sanctuary status, and their desires to allow illegals to vote is enough. But some states, like CA, also allow illegals to hold state office. All of this undermines our Republic.

The Border Is A Federal Issue

For some purists not to see this as a federal issue to me is narrow-minded. It most definitely is one of the major powers granted to the federal government;  to bring us together in a time of war.

Securing our border is "preventing that war", and in my opinion goes hand-in-hand with that mandate. If a foreign force decides to cross our northern, or southern border, and invade our country, do you think we should leave it to the states to defend those borders? Of course not.

The same thing applies here. The case just needs to be made. In my personal opinion, I think that the countries outer borders should be patrolled, and defended, by the military, not civilian authorities.

This would not be a violation of the Posse Comitatus Act if a small swath of the border area was federalized, and the military was not acting against citizens. They would be acting against people, and forces, from another country.

I think most of us realize the dangerous threats at the southern border. A couple rising threats are that of the cartels and gangs like MS-13.

You could definetly argue the point that these are hostile actions against our country when cartels are kidnapping our citizens from border towns and holding them for ransom or killing them.

Their battles over drugs are spilling into the streets in our border towns as well. Border town officials are on their payrolls and look the other way. I'm sure we will see them stand up against any sort of barrier to prevent illegal drugs and human trafficking.

The military should also be guarding our coastal borders. You think that the coast guard will defend us from an invasion from a foreign force? Do they have the resources to stop a Russian sub? I mean really, let's use some common sense.

Trump has said before that the Coast Guard should be our 5th branch of the military, and I agree. We must federalize our border and use the military to defend it.

If I haven't given you enough proof as to why yet; I think you may change your mind after reading my Latin America report and how China and Russia are making inroads at our back door!

Trump has also said that he is willing to work with Congress on modifications to the NEA, after the border wall is completed of he should.

He played his whole political hand based on the constitutionality of the powers that have been made available to him, whether we agree with those or not, and he should be allowed to play them out.

The whole NEA is quite vague, and open for so much abuse, and interpretation, that it does leave the door wide-open for all sorts of ridiculous actions.

Would Kamala Harris declare a national emergency to enforce climate change issues? After all, even the Pentagon has put out reports of this serious threat. Or how about Pelosi's warning of using one for gun confiscation.

So, the laws and granted powers, definitely need some work. But as for now, it is what we have to work with.

Never-Trumpers, Democrats, Rhinos, and some purist "Constitutionalists", all suddenly want to cry about "defending the Constitution" in light of the President's latest move to declare a National Emergency to build the wall.

I consider myself a Constitutionalist. I long to get back to the days when we actually upheld the Constitution as a true guiding document. One that actually protects the rights of citizens by retraining government.

I'm also a realist and understand the practicalities of the situation. And, it's always much more complicated than anyone thinks.

The fact is, that time was long before any of us were here. The Constitution has been under assault since the moment it was ratified.

I think its evident to everyone reading this that the assault on our Constitution has certainly increased in intensity lately. Really, since Obama took office, but there are many things to point to preceding that.

We can look no further than the GOP for not upholding the Constitution when they had the opportunity to do so, and rather than do this, they themselves have exploited it. If the so called "Conservatives" will do this, what do you think the other side will do?

At this point in history, outlining the failures of Constitutional adherence by either side of the aisle is a moot point.

The real question that we should be asking ourselves is "Will there be a Constitution to defend?"

While the left is in office, Conservatives and Constitutionalists do nothing, nothing but bitch, about Constitutional abuses. They never challenged anything Obama did.

But, now that we are in a literal fight for the future of our Constitutional Republic; now they want to stand up against their perceived Constitutional abuses.

They badmouth President Trump. They try to handcuff him, or get him to handcuff himself. They shame him. All for what? You must ask the question, "Are you really so pro-constitution, or are you just anti-Trump?"

The fact of the matter is that if we don't focus our efforts on getting this President re-elected in 2020, there won't be a Constitution left to defend!

There is a world where some purist live, in what the Constitution was intended to be, and I'm not discrediting that, but it is also not that simple. If we ever want to get back to that place, then we have to use the tools that are available to us today to do it.

And some purism is so pure that even Madison himself came to the realization that things aren't that pure and simple when put into practical application, but more on that in the article below.

Tools To Fight Against State Tyranny And Defend Our Civil Rights; Madison explains.

In fact, "precedent" supports President Trump. We can argue in the future whether any President should have that authority, and what it is precisely that the Constitution allows him, but that's not the point of this article, and clearly that is wasted because no one in D.C. is going to do anything about that right now.

We are wasting precious time, ammo, and resources fighting the wrong fight, against the wrong people, against ourselves, at the wrong time.

The point really is to say, whether you love him or hate him, if you truly love the Constitution, then you will stop slandering this President and get behind him, or come  November 2020, there won't be a Constitution left to defend!

Once, President Trump is re-elected, and in his final term in office, hopefully with the support of less Rhinos and more true conservatives, POTUS can focus on continuing to drain this very deep swamp, and reversing our course on the Constitution.

Once the deep state is under control, and Socialism is squashed, we can then turn our focus over to the restoration of Constitution principals. You have to know which battles to fight and when to fight them.

Do you think that we would still have a Constitutional Republic if Hillary had won? And Hillary now is the "conservative" one from the left. There would be no Constitution left to defend if she had won. As the Democrats continue to move farther and farther left in a radical way, openly electing Sharia compliant Muslims and self-proclaimed Socialists; Do you really think that there will be a Constitution to defend if we lose 2020?

My contention is that we have to know which battles to fight and when. Right now, the battle must be to save the Republic! To do that we must stop bashing Trump, but rather get behind him and secure the 2020 elections.

If anyone needs pressure right now, its Congressmen. We need to let them know that attempts to subvert POTUS, especially from our side, will not be tolerated.

Remember, it was Mitch McConnell (R) Majority Leader of the Senate that refused to eliminate the 60 vote "super majority" rule that created the failures of the Obamacare repeal, and a real budget, as well as, multiple border wall funding measures.

Yet, Mitch decided to finally remove the super majority rule in order to vote AGAINST Trump's national emergency declaration for the border wall. Let that sink in. If you think that there is blame to place somewhere, let's start putting it where it is deserved.

Even if you are a "never-Trumper", consider him the enemy of your enemy, if in fact you do love our Constitutional Republic more than you hate Trump. Let's get him, and a good "real" Conservative supporting cast, elected in 2020, then we can return to arguing the nuances of Constitution Principals and government restraint.

As always, thank you for getting this far! Sharing is easy. Please help spread the truth!

Additional resources for this topic:

The federalist society

KrisAnne Hall

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2 thoughts on “Trump’s National Emergency: Will There Be A Constitution Left To Defend?

  1. EXCELLENT ARTICLE MY FRIEND! I shared it widely on SM. Happy to see the new website up and running as your views will surly be a hit and bring a lot of people to your site.

    1. Thank you Preston! I’m glad you find the articles useful and insightful. As always we’d love to hear any article ideas and/or resources that would be useful to readers. Thank you very much for supporting us by sharing on social media!

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