What happens when both the House and the Senate votes oppose the Donald Trump border emergency?
The New York Times: House Votes to Block Trump’s National Emergency Declaration About the Border
Donald Trump's national emergency declaration to build the border wall is on the cusp of being terminated by Congress as Republicans on Capitol Hill are growing increasingly uneasy with the move.
At least a dozen Republicans have signaled they are unhappy with the president's decision to go the route of a national emergency.
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| This is what the evil Donald Trump border wall looks like |
Following is an ambiguous point of view about the evil Donald Trump border wall, written by A. Sedler is a constitutional law professor at Wayne State University and published in The Detroit Free Press.
Sedler's opinion gives context to the Donald Trump incendiary action, by declaring a national emergency, just because he failed to get the funding to build his border wall, when he promised Americans that Mexico was going to pay for it. I dislike ambiguity but appreciate learning the information provided about the authority of the United States president.Donald Trump has now declared a national emergency along the southwestern border and claims that this will enable him to obtain funding for his long-promised border wall. His opponents claim that the declaration is illegal, and have threatened litigation. The only thing that is certain about the declaration is that everything is uncertain. I will now discuss the two basic questions that are presented by the declaration.
Trump is also relying on other laws that he claims authorize the reprogramming of funds for the wall. In the event of a viable legal challenge to the transfers of funds, the courts will have to determine whether the transfer is authorized by the laws on which the President relies. The government will argue that the courts should give broad deference to the administration's determination that there is a national emergency and his determination as to what is and what is not essential to the national defense.
The challengers will argue that such deference is not appropriate to the transfer of funds that have already been appropriated for other purposes and that the courts should carefully scrutinize the facts on which the President relies to support his determination. It is completely speculative, of course, as to which approach the courts will take.
Who can challenge the President's declaration?
Talk of lawsuits challenging the President’s declaration must take into account the requirements of standing. Media commentary to the contrary, a viable lawsuit challenging the President’s declaration is far from a sure thing. At least for now.
The constitutional jurisdiction of the federal courts is limited to “cases and controversies,” which means that the courts can only hear cases involving parties with adverse legal interests. In order to bring a federal court suit, the plaintiff must have standing, which requires that the plaintiff must have suffered significant personal harm from the challenged action. The Supreme Court has held that individual senators and representative do not have standing to challenge actions of the President.
Is Trump's emergency declaration legal?
Here we start off with some basic propositions:
► First, the Constitution makes no provision for a “national emergency” and does not recognize anything like emergency powers.
►Second, only Congress can appropriate federal funds.
►Third, with few exceptions, the President can only act with Congressional authorization, and any presidential action can be challenged as not being authorized by applicable legislation.
A number of laws do authorize the President to take certain actions by declaring a national emergency. The National Emergencies Act of 1976, as amended in 1985, governs the President’s declaration of a national emergency. The President must specify the law under which he proposes to act, and must comply with the provisions of that law. Congress has 18 days to adopt a joint resolution to terminate the declaration. But the joint resolution is subject to a presidential veto, which can only be overturned by a two-thirds vote of both houses. This is highly unlikely.
One of the laws on which the President is relying is a law dealing with military construction.
Here we start off with some basic propositions:
► First, the Constitution makes no provision for a “national emergency” and does not recognize anything like emergency powers.
►Second, only Congress can appropriate federal funds.
►Third, with few exceptions, the President can only act with Congressional authorization, and any presidential action can be challenged as not being authorized by applicable legislation.
A number of laws do authorize the President to take certain actions by declaring a national emergency. The National Emergencies Act of 1976, as amended in 1985, governs the President’s declaration of a national emergency. The President must specify the law under which he proposes to act, and must comply with the provisions of that law. Congress has 18 days to adopt a joint resolution to terminate the declaration. But the joint resolution is subject to a presidential veto, which can only be overturned by a two-thirds vote of both houses. This is highly unlikely.
One of the laws on which the President is relying is a law dealing with military construction.
Under this law (33 U.S.C. sec. 2293), the President may terminate or defer a military construction project that he deems not essential to the national defense, and apply the resources for that project to construct another project that he considers essential to the national defense.
Trump is also relying on other laws that he claims authorize the reprogramming of funds for the wall. In the event of a viable legal challenge to the transfers of funds, the courts will have to determine whether the transfer is authorized by the laws on which the President relies. The government will argue that the courts should give broad deference to the administration's determination that there is a national emergency and his determination as to what is and what is not essential to the national defense.
The challengers will argue that such deference is not appropriate to the transfer of funds that have already been appropriated for other purposes and that the courts should carefully scrutinize the facts on which the President relies to support his determination. It is completely speculative, of course, as to which approach the courts will take.
Who can challenge the President's declaration?
Talk of lawsuits challenging the President’s declaration must take into account the requirements of standing. Media commentary to the contrary, a viable lawsuit challenging the President’s declaration is far from a sure thing. At least for now.
The constitutional jurisdiction of the federal courts is limited to “cases and controversies,” which means that the courts can only hear cases involving parties with adverse legal interests. In order to bring a federal court suit, the plaintiff must have standing, which requires that the plaintiff must have suffered significant personal harm from the challenged action. The Supreme Court has held that individual senators and representative do not have standing to challenge actions of the President.
Nevertheless, the court has indicated that if one house of Congress authorizes the suit, that may be sufficient to confer standing.*
However, the court has also held that unless a conflict between Congress and the administration affects the rights of third parties – which it usually doesn’t – it will invoke the political question doctrine and refuse to hear the case. Rather, the court has said that the President and Congress should “resolve the conflict as equals.”
A state or a city in the path of the proposed border wall would have standing to challenge the construction of the wall if, and only if it could show that the construction of the wall could cause some injury to the city or state. Perhaps a city like El Paso, which is a major crossing point between the U.S. and Mexico, could meet this test, but perhaps not. One clear example of a person who would have standing is a landowner whose land would be taken by the government for construction of the wall. But this would be some time in the future.
In the months ahead, there will be a plethora of commentary about the President’s declaration of a national emergency to obtain funding for his long-promised border wall.
A state or a city in the path of the proposed border wall would have standing to challenge the construction of the wall if, and only if it could show that the construction of the wall could cause some injury to the city or state. Perhaps a city like El Paso, which is a major crossing point between the U.S. and Mexico, could meet this test, but perhaps not. One clear example of a person who would have standing is a landowner whose land would be taken by the government for construction of the wall. But this would be some time in the future.
In the months ahead, there will be a plethora of commentary about the President’s declaration of a national emergency to obtain funding for his long-promised border wall.
Ultimately, the questions we examined here will be resolved within the framework of the American constitutional and judicial system.
*Professor Sedler does not provide context about what hypothetically happens when both houses of the Congress authorizes the suit, even if the President vetoes the majority votes by the House and the Senate.
Labels: ABC News, Detroit Free Press, Republicans, Sedler, The New York Times, Wayne State University
posted by Juliana L'Heureux | 4:20 AM
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