No, Trump Cannot Declare an ‘Emergency’ to Build His Wall

If he did, and used soldiers to build it, they would all be committing a federal crime.

President Trump on Friday said that he was considering the declaration of a “national emergency” along the border with Mexico, which he apparently believes would allow him to divert funds from the military budget to pay for a wall, and to use military personnel to build it.

While it is hard to know exactly what the president has in mind, or whether he has any conception about what it would entail, one thing is clear: Not only would such an action be illegal, but if members of the armed forces obeyed his command, they would be committing a federal crime.

Begin with the basics. From the founding onward, the American constitutional tradition has profoundly opposed the president’s use of the military to enforce domestic law. A key provision, rooted in an 1878 statute and added to the law in 1956, declares that whoever “willfully uses any part of the Army or the Air Force” to execute a law domestically “shall be fined under this title or imprisoned not more than two years” — except when “expressly authorized by the Constitution or Act of Congress.”

Another provision, grounded in a statute from 1807 and added to the law in 1981, requires the secretary of defense to “ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)” must “not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.”

In response to the Hurricane Katrina disaster in New Orleans, Congress created an express exception to the rules, and authorized the military to play a backup role in “major public emergencies.” But in 2008 Congress and President Bush repealed this sweeping exception. Is President Trump aware of this express repudiation of the power which he is threatening to invoke?

The statute books do contain a series of carefully crafted exceptions to the general rule. Most relevantly, Congress has granted the Coast Guard broad powers to enforce the law within the domestic waters of the United States. But there is no similar provision granting the other military services a comparable power to “search, seize and arrest” along the Mexican border. Given Congress’s decision of 2008, this silence speaks louder than words. Similarly, the current military appropriations bill fails to exempt military professionals from criminal punishment for violating the law in their use of available funds.

It is, I suppose, possible to imagine a situation in which the president might take advantage of the most recent exception, enacted in 2011, which authorized the military detention of suspected terrorists associated with Al Qaeda or the Taliban. But despite President Trump’s unsupported claims about “terrorists” trying to cross the border, it is an unconscionable stretch to use this proviso to support using the military for operations against the desperate refugees from Central America seeking asylum in our country.

It is even less plausible for the president to suspend these restrictions under the National Emergencies Act of 1976. From the Great Depression through the Cold War, presidents systematically abused emergency powers granted them by Congress in some 470 statutes, culminating in the Watergate fiasco. In response, the first section of the 1976 act terminated all existing emergencies and created a framework of checks and balances on the president’s arbitrary will.

If President Trump declared an emergency, Section Five of the act gives the House of Representatives the right to repudiate it immediately, then pass their resolution to the Senate — which is explicitly required to conduct a floor vote within 15 days. Since President Trump’s “emergency” declaration would be a direct response to his failure to convince Congress that national security requires his wall, it is hard to believe that a majority of the Senate, if forced to vote, would accept his show of contempt for their authority.

The Supreme Court’s 1953 decision in Youngstown v. Sawyer would be critical in Congressional consideration of such a decision. In a canonical opinion by Justice Robert Jackson, the court invalidated President Truman’s attempt in 1952 to use his powers as commander in chief to nationalize steel mills in the face of labor strikes. The decision imposed fundamental constitutional limits on the president’s power to claim that a national emergency — in this case, the Korean War — allowed him to override express provisions preventing him from using those powers domestically.

Trump’s Darkest Days

Responsible journalists report that Trump White House aides (who are notoriously sieve-like) say the US president feels alone and cornered.

Feeling lonely should not be surprising, as Trump is not one for close friendships. He has proven time and again that for him, loyalty is a one-way street. Virtually no one who works for him can feel secure. Probably no one but his daughter Ivanka is safe from the terminal wrath that eventually pushes so many associates out the door.

.. Trump had dropped hints that he would pardon Manafort, but he was advised – and for once, he listened – that to do so before November’s midterm congressional elections would be catastrophic for the Republicans and therefore him. Manafort apparently calculated that he could neither bet on a pardon later – what if Trump himself was in serious legal danger by then? – nor afford another trial. His plea deal with Mueller strips him of most of his properties and tens of millions of dollars, but he was willing to accept huge financial losses to avoid the possibility of spending the rest of his life in prison.

.. Manafort also wanted an arrangement that would keep his family safe. After all, he would be giving Mueller’s prosecutors the goods on some Russian oligarchs close to President Vladimir Putin – folks who are not particularly gentle toward people who betray them.

.. Kavanaugh was a risky choice all along. Drawn from a list of other highly conservative possible nominees provided to the president by the right-wing Federalist Society, Kavanaugh stood apart for his extraordinary views about presidential power. Kavanaugh has written that he believed that a president cannot be investigated or prosecuted while he is in office.

.. This view that a president is above the law is unique (so far as is known) among serious legal scholars. Its appeal to Trump is obvious. Moreover, Kavanaugh’s views are far to the right on other issues as well

.. Republican leaders were desperate to get Kavanaugh confirmed before the midterms, lest their voters stay home out of disappointment and even anger if he wasn’t confirmed – in which case their worst nightmare, a Democratic takeover of the Senate as well as the House of Representatives, could come true..

.. Bob Woodward’s latest book, Fear, which (like previous books on Trump, but to a greater extent and with more depth) offers a devastating portrait of a dysfunctional White House. In particular, the book – together with an anonymous New York Times op-ed by a senior administration official – showed how far aides would go to keep an incurious, ignorant, and paranoid president from impulsively doing something disastrous.

..

U.S. Officials ‘at a Fucking Loss’ Over Latest Russia Sellout

Current and former American diplomats are expressing disgust and horror over the White House’s willingness to entertain permitting Russian officials to question a prominent former U.S. ambassador.

.. “It’s beyond disgraceful. It’s fundamentally ignorant with regard to how we conduct diplomacy or what that means. It really puts in jeopardy the professional independence of diplomats anywhere in the world, if the consequence of their actions is going to be potentially being turned over to a foreign government,”

.. During President Trump’s press conference with Vladimir Putin in Helsinki, Putin pivoted a question about extraditing the 12 Russian intelligence officers whom Robert Mueller has indicted into a quid pro quo for going after longtime betes noire currently beyond his reach.

.. Putin singled out Bill Browder, whose exposure of widespread Russian tax fraud led to the passage of a U.S. human rights sanctions law Putin hates. Standing next to Trump, the Russian president accused Browder of masterminding an illegal campaign contribution to Hillary Clinton and alleging vaguely that he had “solid reason to believe that some intelligence officers guided these transactions.” Should Trump permit the Russians to question people around Browder, Putin hinted, he will let Mueller’s people be “present at questioning” of the intelligence officers.

.. On Wednesday, Russian prosecutors escalated the stakes. The prosecutor-general’s office said it wanted to interview Michael McFaul, the former U.S. ambassador to Russia, another Putin bete noire. McFaul—the Obama-era ambassador to Moscow—replied on Twitter that the Russians know well that he wasn’t even in Russia during the relevant time frame for any case against Browder.

.. Sarah Huckabee Sanders declined to rule out permitting the Russians to question McFaul. Sanders said that there had been “some conversation” in Helsinki about the issue, though Trump made no “commitment.”
.. Heather Nauert called the Russian request for McFaul “absolutely absurd”—which was closer in line with how former U.S. diplomats viewed Putin’s gambit.If the U.S. would make a former diplomat avail for questioning by a foreign government without evidence of wrongdoing, then that would be quite horrifying,” said Ron Neumann,

.. Susan Rice, the former U.S. ambassador to the United Nations and Barack Obama’s national security adviser, tweeted that the lack of commitment to protecting McFaul was “beyond outrageous.
.. If the White House cannot defend and protect our diplomats, like our service members, they are serving a hostile foreign power not the American people.”
.. “To even hint that there’s some element of credibility to Russian disruptions and distractions puts a bullseye on the back of any diplomat and invites authoritarian regimes to bully and threaten American public servants for the crime of doing their job
.. Ned Price, a former CIA analyst and spokesman for the Obama National Security Council, said Sanders’ comments made Trump look “even weaker” than during Trump’s Monday press conference with Putin. “Trump has always been all too eager to cave to Putin, but, as far as we know, it’d been largely in the abstract. He sells out our intelligence community, attacks NATO, shelves our commitment to human rights. But Putin now has specific demands in the form of human beings—one of them formerly our designated representative to Russia,” Price said.
.. “By failing to reject the idea out of hand – immediately and forcefully – Trump signaled that absolutely nothing is off limits when it comes to Putin. And just as shocking, he’s willing to play Putin’s brand of ball, in which the world is purely transactional and lives are expendable.”
.. The current U.S. diplomat said the openness to turning over McFaul capped off a shocking week for U.S. geopolitics.
.. The president has first and foremost his interests at the top of his mind, as opposed to the government’s. That’s very clear over the past week and a half, between shitting on our NATO allies and kissing Putin’s ass,” the diplomat said. “He cares more about himself than the nation and any of us who serve it.”The diplomat continued: “Either he’s compromised by Putin or he’s a pussy, in which case he should grab himself.”

Jordan Peterson’s Gospel of Masculinity

Maps of Meaning: The Architecture of Belief,”

.. Peterson, formerly an obscure professor, is now one of the most influential—and polarizing—public intellectuals in the English-speaking world.

.. His central message is a thoroughgoing critique of modern liberal culture, which he views as suicidal in its eagerness to upend age-old verities

.. he has learned to distill his wide-ranging theories into pithy sentences, including one that has become his de facto catchphrase, a possibly spurious quote that nevertheless captures his style and his substance: “Sort yourself out, bucko.”

.. For a few years, in the nineteen-nineties, he taught psychology at Harvard;

.. His fame grew in 2016, during the debate over a Canadian bill known as C-16.

.. Peterson resented the idea that the government might force him to use what he called neologisms of politically correct “authoritarians.”

.. “I am not going to be a mouthpiece for language that I detest.” Then he folded his arms, adding, “And that’s that!”

.. To many people disturbed by reports of intolerant radicals on campus, Peterson was a rallying figure: a fearsomely self-assured debater, unintimidated by liberal condemnation.

.. Last fall, a teaching assistant at Wilfrid Laurier University, in Waterloo, Ontario, was reprimanded by professors for showing her class a clip of one of Peterson’s debates.

.. Cathy Newman, asked what gave him the right to offend transgender people. He asked, cheerfully, what gave her the right to risk offending him.

.. David Brooks, in the Times, said that Peterson reminded him of “a young William F. Buckley.”

.. Peterson’s goal is less to help his readers change the world than to help them find a stable place within it.

.. “You should do what other people do, unless you have a very good reason not to.”

.. he is famous today precisely because he has determined that, in a range of circumstances, there are good reasons to buck the popular tide.

.. He is, by turns, a defender of conformity and a critic of it, and he thinks that if readers pay close attention, they, too, can learn when to be which.

 ..  “Religion was for the ignorant, weak, and superstitious,”
.. To ward off mental breakdown, he resolved not to say anything unless he was sure he believed it; this practice calmed the inner voice, and in time it shaped his rhetorical style, which is forceful but careful.
.. a client diagnosed with paranoia. He says that such patients are “almost uncanny in their ability to detect mixed motives, judgment, and falsehood,”
.. “You have to listen very carefully and tell the truth if you are going to get a paranoid person to open up to you,”

.. Peterson sometimes assumes the role of a strident anti-feminist, intent on ending the oppression of males by destroying the myth of male oppression.

.. much of the advice he offers unobjectionable, if old-fashioned: he wants young men to be better fathers, better husbands, better community members.

.. Peterson is an heir, too, to the professional pickup artists who proliferated in the aughts

.. “The highly functional infrastructure that surrounds us, particularly in the West,” he writes, “is a gift from our ancestors: the comparatively uncorrupt political and economic systems, the technology, the wealth, the lifespan, the freedom, the luxury, and the opportunity.”

.. Prime Minister is Justin Trudeau, who seems to strike Peterson as the embodiment of wimpy and fraudulent liberalism.

.. Peterson seems to view Trump, by contrast, as a symptom of modern problems, rather than a cause of them.

.. Peterson seems to view Trump, by contrast, as a symptom of modern problems, rather than a cause of them.

.. Peterson sometimes asks audiences to view him as an alternative to political excesses on both sides.

.. “I’ve had thousands of letters from people who were tempted by the blandishments of the radical right, who’ve moved towards the reasonable center as a consequence of watching my videos.”

.. he typically sees liberals, or leftists, or “postmodernists,” as aggressors—which leads him, rather ironically, to frame some of those on the “radical right” as victims.

.. Postmodernists, he says, are obsessed with the idea of oppression, and, by waging war on oppressors real and imagined, they become oppressors themselves. 

.. When he lampoons “made-up pronouns,” he sometimes seems to be lampooning the people who use them, encouraging his fans to view transgender or gender-nonbinary people as confused, or deluded.

Once, after a lecture, he was approached on campus by a critic who wanted to know why he would not use nonbinary pronouns. “I don’t believe that using your pronouns will do you any good, in the long run,” he replied.

..  “If our society comes to some sort of consensus over the next while about how we’ll solve the pronoun problem,” he said, “and that becomes part of popular parlance, and it seems to solve the problem properly, without sacrificing the distinction between singular and plural, and without requiring me to memorize an impossible list of an indefinite number of pronouns, then I would be willing to reconsider my position.”

.. In the case of gender identity, Peterson’s judgment is that “our society” has not yet agreed to adopt nontraditional pronouns, which isn’t quite an argument that we shouldn’t.

.. He reveres the Bible for its stories, reasoning that any stories that we have been telling ourselves for so long must be, in some important sense, true.

.. a conviction that good and evil exist, and that we can discern them without recourse to any particular religious authority

Do You Think Donald Trump Is Ready for a Real Financial Crisis?

The tax law and a push by the Trump administration to increase military spending will reduce federal revenue and force the Treasury to borrow more money when the economy is close to full employment. This could stoke inflation and prompt the Federal Reserve to tighten monetary policy. That, in turn, would slow the economy.

.. The prospect of a recession or financial crisis on Mr. Trump’s watch is unnerving, because he is as confident in his own abilities as he is lacking in knowledge and sound judgment. When confronted with criticism, he lashes out like an intemperate child.

On Monday, he said Democrats who did not applaud during his State of the Union address were un-American and treasonous.

.. If the stock market falls further, will the president try to reassure the public, or will he launch a Twitter fusillade blaming the drop on, say, a conspiracy hatched by the Senate minority leader, Chuck Schumer, and Tom Steyer, the billionaire hedge fund manager who wants Mr. Trump impeached?

.. Instead, he has stacked his administration with incompetent yes men, right-wing ideologues and Washington swamp dwellers. Consider the Treasury secretary, Steven Mnuchin, a former investment banker, who unnerved the currency market last month by suggesting that the United States was trying to weaken the dollar. His statement broke with the longstanding practice followed by Treasury secretaries from both parties to avoid making careless public pronouncements about American currency.

Mr. Mnuchin and Gary Cohn, the White House’s chief economic adviser, also debased their credibility last year by arguing with no evidence whatsoever that the Republican tax cut would pay for itself.

.. Paul Ryan, tried to pass off as good economic news that a public school secretary would take home an extra $1.50 a week as a result of the tax law.

.. Mr. Ryan, for one, is citing the deficit to make the case that the government needs to slash Medicaid, Medicare and other important government programs. Other members of his party are using the deficits to argue that the government cannot afford to repair and upgrade the country’s dilapidated infrastructure.

 

Know-Nothings for the 21st Century

If you’re a student of history, you might be comparing that person to a member of the Know Nothing party of the 1850s, a bigoted, xenophobic, anti-immigrant group that at its peak included more than a hundred members of Congress and eight governors. More likely, however, you’re suggesting that said person is willfully ignorant, someone who rejects facts that might conflict with his or her prejudices.

.. The parallels between anti-immigrant agitation in the mid-19th century and Trumpism are obvious. Only the identities of the maligned nationalities have changed.

After all, Ireland and Germany, the main sources of that era’s immigration wave, were the shithole countries of the day. Half of Ireland’s population emigrated in the face of famine, while Germans were fleeing both economic and political turmoil. Immigrants from both countries, but the Irish in particular, were portrayed as drunken criminals if not subhuman. They were also seen as subversives: Catholics whose first loyalty was to the pope. A few decades later, the next great immigration wave — of Italians, Jews and many other peoples — inspired similar prejudice.

.. Yet conservative professors are rare even in hard sciences like physics and biology, and it’s not difficult to see why. When the more or less official position of your party is that climate change is a hoax and evolution never happened, you won’t get much support from people who take evidence seriously.

But conservatives don’t see the rejection of their orthodoxies by people who know what they’re talking about as a sign that they might need to rethink. Instead, they’ve soured on scholarship and education in general. Remarkably, a clear majority of Republicans now say that colleges and universities have a negative effect on America.

So the party that currently controls all three branches of the federal government is increasingly for bigotry and against education. That should disturb you for multiple reasons, one of which is that the G.O.P. has rejected the very values that made America great.

.. Think of where we’d be as a nation if we hadn’t experienced those great waves of immigrants driven by the dream of a better life. Think of where we’d be if we hadn’t led the world, first in universal basic education, then in the creation of great institutions of higher education. Surely we’d be a shrunken, stagnant, second-rate society.

.. Moretti argues, rightly in the view of many economists, that this new divergence reflects the growing importance of clusters of highly skilled workers — many of them immigrants — often centered on great universities, that create virtuous circles of growth and innovation. And as it happens, the 2016 election largely pitted these rising regions against those left behind

.. one way to think of Trumpism is as an attempt to narrow regional disparities, not by bringing the lagging regions up, but by cutting the growing regions down. For that’s what attacks on education and immigration, key drivers of the new economy’s success stories, would do.