The Homa Files

The odds seem to be increasing that President Trump will declare a National Emergency and use his executive authority to fund and build sections of crossing barriers (aka, “walls”) along the southern border.

So, I got curious and did a little digging into National Emergencies.

Here are some highlights…

=============

First, some numbers:

More than 50 national emergencies have been declared since the National Emergencies Act (NEA) was passed in 1976,

During their terms, Bush declared 13 emergencies and Obama declared 12

28 national emergencies are still in effect from past presidents

The longest continuing national emergency will have its 40th anniversary this year.  It was declared in 1979 by President Carter to sanction certain Iranian property movements and financial transactions.

=============

The process:

The President has wide discretion to declare a national emergency.

According to a quoted  NPR legal source: “Declaring an emergency is pretty easy. There aren’t a lot of legal limits on a president’s ability to do that, frankly, even if there isn’t a real emergency happening.”

Congress can rescind an emergency declaration via a so-called “joint resolution”

A joint resolution must be passed by both the Senate and the Congress.  And, the President must sign the legislation.

Bottom line: chances are between slim and none that any President who declared a national emergency would do a 180 and promptly rescind it..

National emergencies must be renewed annually, essentially by the President advising Congress of his intent to renew it.

Historically, renewal are essentially “rubber-stamped” … which is why so many past declarations are still active.

============

Legal challenges

Presidents declared national emergencies prior to the NEA being passed in 1976.

Before the NEA, presidents (back to FDR) “asserted the power to declare emergencies without limiting their scope or duration, without citing the relevant statutes, and without congressional oversight.” Source

In a landmark Supreme Court case (Youngstown Sheet & Tube Co.), the SCOTUS limited what a president could do in a national emergency (i.e. the Feds couldn’t take over control of the steel mills in question), but did not limit the emergency declaration power itself. Source

The 1976 National Emergency Act specified certain limits on a President’s authority, but they remain quite broad.  For example,  they include authorizing and constructing military construction projects.

Bottom line: Most analysts agree that the President would have authority to channel the funding required to build a wall.

Some legal pundits argue that courts could test the legitimacy of the “emergency” that is being declared.

A frequent anti-barrier talking point is that the number of illegal immigrants crossing the border has declined in recent years, thus, there is no imminent emergency.

To me, that seems to be a tenuous argument.

It’s analogous to saying that the decline in Baltimore’s murder rate in from 342 in 2017 to 309 in 2018 is clear proof that Baltimore doesn’t have a murder problem.

Say, what?

All agree that a Trump Declaration (of anything) will be promptly enjoined by the uber-liberal 9th circuit … and then fast-tracked to SCOTUS

==============

Tomorrow, I’ll present a creative way that Trump might be able to insulate his declaration of emergency from a court challenge …..

=============

Follow on Twitter @KenHoma

>> Latest Posts

#HomaFiles

This entry was posted on February 4, 2019 at 6:59 am and is filed under Border walls, National Emergency Act (NEA). You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.