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Thomas Gallatin / Feb. 19, 2019

Emergency Declaration: Demo States File Obstructionist Lawsuit

Claiming his declaration of a national emergency creates a constitutional crisis, Democrats sue.

As President Donald Trump predicted when he announced his decision to declare a national emergency over securing the border, 16 states filed a lawsuit on Monday with the leftist Ninth Circuit Court of Appeals. Trump has “veered the country toward a constitutional crisis of his own making,” the states allege. California fronts the list, which includes Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, and Virginia. Notably and not surprisingly, all of these states have Democrat attorneys general and all but one have Democrat governors.

But conservatives have been divided over Trump’s decision as well, with many raising objections over questions surrounding the constitutionality of his action. Others have questioned whether the long-running illegal-immigration and border-enforcement problem is in fact a national emergency.

The National Emergencies Act of 1976 does not define by what parameters a “national emergency” may be determined; rather it grants that authority to the president. What the law does limit is what the president can do once an emergency has been declared. So, to reiterate, the declaration of a national emergency is entirely up to the president’s discretion, but once an emergency has been declared, the actions the president is authorized to take have been limited by Congress. The Federalist’s Sean Davis does a nice job highlighting the two most important statutes related to questions of the president’s authority regarding national emergencies: “one authorizing the president to declare national emergencies (50 U.S.C 1601 et. seq.) and the other authorizing the president to reprogram existing federal appropriations in response to an emergency declaration (10 U.S.C. 2808).”

In our view, Trump has thus far operated fully within the narrow bounds of established federal law. Debating if he should or should not have declared a national emergency is a legitimate argument to have, though conflating “should” with “can” serves only to confuse the matter. Whether his decision will have positive or negative political consequences is another matter entirely from questions of constitutionality or statutory authority.

The better argument to have is over the constitutionality of the law Congress passed in 1976. National emergencies have been invoked 59 times by presidents since, and a total of 18 times by George W. Bush and Barack Obama over their terms. As the legal challenge works its way through the courts, we hope the Supreme Court will rule on the constitutionality of the law itself. Until then, blaming Trump for taking advantage of the authority the law grants him is misplaced outrage.

(Edited.)

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