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 But in 2008 Congress and President Bush repealed this sweeping exception.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.”