BREAKING: Fox News’ Shep Smith just trashed Mike Pence over the dismal conditions at the border facilities for migrants.
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 But in 2008 Congress and President Bush repealed this sweeping exception.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.
a repeal bill so monumental in its cruelty that they feel they have no choice but to draft it in secret, not let the public know what it does, hold not a single hearing or committee markup, slip it in a brown paper package to the Congressional Budget Office, then push it through to a vote before the July 4th recess before the inevitable backlash gets too loud.
“We aren’t stupid,” one GOP Senate aide told Caitlin Owens — they know what would happen if they made their bill public.
.. Today, we learned that in a break with longstanding precedent, “Senate officials are cracking down on media access, informing reporters on Tuesday that they will no longer be allowed to film or record audio of interviews in the Senate side hallways of the Capitol without special permission.” Everyone assumes that it’s so those senators can avoid having to appear on camera being asked uncomfortable questions about a bill that is as likely to be as popular as Ebola.
.. This is how a party acts when it is ashamed of what it is about to do to the American people. Yet all it would take to stop this abomination is for three Republicans to stand up to their party’s leaders and say, “No — I won’t do this to my constituents.” With only a 52-48 majority in the Senate, that would kill the bill. But right now, it’s looking as though this Coward Caucus is going to be unable to muster the necessary courage... Take Shelley Moore Capito of West Virginia, a state where over 175,000 people have gotten insurance thanks to the Medicaid expansion... Last week The Hill reported that Capito now supports eliminating the expansion after all — just doing it over seven years instead of the three years that the House bill required...Or how about Ohio’s Rob Portman? In his state, 700,000 people gained insurance as a result of the Medicaid expansion... They’d pay for the slower elimination of the expansion by cutting money out of the existing program, so they could get rid of all of the ACA’s tax increases.. — over half of Medicaid dollars go to the elderly and disabled... That means that they aren’t just undoing the ACA; they’re making things substantially worse for tens of millions of America’s most vulnerable citizens than they were even before the ACA passed... And they’re hoping they can do all this before anyone realizes what they’re up to, making this an act of both unconscionable heartlessness and epic cowardice. Their efforts to hide what they’re doing show that they are still capable of feeling some measure of shame. But it might not be enough to stop them.