A well respected liberal lawyer is the last person the left wants on President Trump’s side. It just so happens that the brilliant lawyer Jonathan Turley is agreeing with and support the move by President Trump to declare a national emergency.
He makes the argument below that the crisis was created by Congress and not by President Trump. For decades we’ve had president after president kick the can down the road when it comes to border security. The flip-flopping has been well documented. Stephen Miller also discusses in a video below the OpEd from Turley how he feels President Trump will get the wall build in spite of opposition from Democrats.
Turley goes into why he believes President Trump will prevail on the legal challenges ahead regarding the national emergency:
Justice Oliver Wendell Holmes once said, “If my fellow citizens want to go to hell, I will help them. It is my job.” He was expressing the limited role of courts in challenges to federal law. It is not the task of judges to sit as a super-legislature to question the agendas of the political branches. They will gladly send Congress to hell. It only needs to point to the destination.
“PRESIDENT TRUMP WILL PREVAIL”
In the matter of the border wall, Congress could not have been more clear where it was heading. It put itself on the path to institutional irrelevancy, and it has finally arrived. I do not agree there is a national emergency on the southern border, but I do believe President Trump will prevail. This crisis is not the making of Donald Trump. This is the making of Congress.
“CONGRESS FRITTERED AWAY CONTROL OVER ITS AUTHORITY”
For decades, Congress frittered away control over its authority, including the power of the purse. I have testified before Congress, warning about the expansion of executive power and the failure of Congress to guard its own authority. The two primary objections have been Congress giving presidents largely unchecked authority and undedicated money. The wall funding controversy today is a grotesque result of both of these failures.
However, Congress later gave presidents sweeping authority under the National Emergencies Act of 1976. While this law allows for a legislative override by Congress, the authority to declare national emergencies is basically unfettered. It is one of many such laws where Congress created the thin veneer of a process for presidential power that, in reality, was a virtual blank slate. At the same time, Congress has continued to give the executive branch billions of dollars with few conditions or limitations.
OBAMA: NO DECLARATION OF WAR WITH LIBYA
This is why President Obama was able to go to war in Libya without a declaration and fund the entire war with billions of undedicated funds. Neither House Speaker Nancy Pelosi nor most of the current Democratic leadership made a peep of objection at this. But when it comes to the wall, Democrats have indicated they will rely on the ruling in House of Representatives versus Sylvia Burwell, in which the court declared the House of Representatives had standing to sue over executive overreach and that Obama violated the Constitution in ordering the payment of billions to insurance companies without authorization from Congress.
“TRUMP HAS THE POWER”
I was lead counsel for the House of Representatives in that case. Ironically, Pelosi vehemently opposed the litigation as a frivolous and unfounded challenge to presidential authority. We won the case. Superficially, it may look like the wall controversy. Obama sought funds from Congress and, when unsuccessful, acted unilaterally. But Obama ordered the money directly from the Treasury as a permanent appropriation, like the money used to pay tax refunds. Congress had never approved such payments.
Conversely, Trump is using appropriated funds. Like the authority under the National Emergencies Act, Congress gave this money to the executive branch without meaningful limitations. Trump now has almost $1.4 billion in newly approved funds to use for border protection. He has identified about $8 billion in loosely dedicated funds for military construction, drug interdiction, and forfeitures. Even if a court disagreed with the use of this money, Trump has the power and funds to start construction of the wall.
CONGRESS: “A MERE PEDESTRIAN IN GOVERNMENT”
Congress has yielded more and more power to the executive branch over decades. In many areas, it has reduced the legislative branch to a mere pedestrian in government, leaving real governing decisions to a kind of “fourth branch” of federal agencies. For their part, presidents have thus become more and more bold in circumventing Congress. When Obama gave a State of the Union proclaiming his intention to bypass Congress after it failed to pass immigration reform, Democrats applauded loudly.
The reason? Congress has never been particularly concerned over past declared emergencies, which have continued with perfunctory annual renewals. Most such emergencies are entirely unknown to the vast majority of Americans. Indeed, the first proclamation of a national emergency occurred under President Wilson in 1917, “arising from the insufficiency of maritime tonnage to carry the products of the farms, forests, mines, and manufacturing industries of the United States.”
Remember that national emergency over the “anchorage and movement of vessels” with respect to Cuba? How about the national emergency over uncut diamonds from Sierra Leone? Then there were the declarations over property owned by certain figures in Zimbabwe, the presidential election in Congo, and issues concerning Yemen, Burundi, Myanmar, Lebanon, Somalia, and South Sudan. All of these were “national emergencies.”
Curiously, Pelosi has called for the declaration of a national emergency to deal with the “epidemic of gun violence in America.” She also said that she wished Trump would add that declaration but that a “Democratic president can do that.” Yes, a Democratic president certainly could, and that is the key point here. Congress gave all presidents the power to make such declarations, and Pelosi is now making the case for Trump today.
While Democrats insist this emergency declaration is simply an effort to use executive power to get what Congress would not give Trump, any litigation would be an effort to use judicial power to do much the same thing. The House of Representatives would try to convince a federal judge of the merits against a wall, after failing to convince enough members of Congress to override the emergency declaration and a presidential veto.
That brings us back to Holmes. Congress has the authority to rescind the national emergency declaration of Trump with a vote of both chambers. The legislative branch should do so. If Congress cannot muster the votes, however, a federal judge is unlikely to do so. Simply put, the courts were not created to protect Congress from itself. Congress has been heading to hell for decades, and it is a bit late to complain about the destination.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.
Senior Adviser Stephen Miller appeared on “Fox News Sunday” and proceeded to bury political hack Chris Wallace with point after point on immigration. Wallace was insufferable because he constantly interrupted Miller during the interview.
Miller stood his ground on President Trump’s national emergency declaration. He said President Trump plans on building a “couple hundred miles of border wall by 2020”:
“You’re going to see probably a couple hundred miles in time; I would say, by the end of the next appropriation cycle. All together in terms of what we already have underway, what’s underway right now, and then what we’re going to complete.”
“THE PRESIDENT IS GOING TO PROTECT HIS NATIONAL EMERGENCY DECLARATION”
“Obviously, the president is going to protect his national emergency declaration. He’s going to protect his national emergency declaration…guaranteed. But the fact that they’re even talking about a resolution of disapproval shows you this is a statutory issue and a statutory delegation that Congress made.”
Stephen Miller knows our sovereignty is at stake because both parties can’t agree on how to secure the border. Democrats prefer to build a “Welcome Center” for the illegals while Republicans talk out of both sides of their mouths on immigration.
Miller spoke to crowds when Trump was on the campaign trail. He’s a brilliant speaker!
CHECK OUT THIS VIDEO FROM CAMPAIGN 2016 AND YOU’LL KNOW WHY MILLER IS STILL ON THE TRUMP TEAM…HE’S AWESOME!
The guy is so dialed in on immigration and what needs to be done to reform it. One million people come into the U.S. yearly! 300K in the ’70s, 500K in the 80’s and now 1 million! NUTS
MILLER FAMOUSLY TOOK DOWN JIM ACOSTA ON IMMIGRATION:
Stephen Miller got the best of Acosta when he schooled him on the Statue of Liberty!