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UPDATE: Trump signs funding bill and declares national emergency, promptly admits he didn't actually need to declare a national emergency

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After reading much of the legal complaint 16 states have signed onto, my entirely worthless legal opinion is that this is going to largely be a question of "does it matter what the president says?" 

 

As far as I can tell, there really aren't many limits on what a President can call an emergency, and it seems pretty certain that he can move the money around like he's planning to. However, if you take him at his word it's almost certainly a constitutional violation.

 

It's almost like a physics question where you're asked to consider a perfectly spherical cow on a flat plane with no friction. In a hypothetical world where you have a blank slate President and only the letter of the law, it seems to me that even in the absence of evidence, that President can do exactly what Trump is doing. Even in the complaint, I think the States kinda admit that. They quote from congress people who passed the National Emergencies Act and why, rather than finding justification solely within the act itself. I honestly have no idea how legally binding that kinda thing is. If you pass a law saying "this law is here for this purpose," and it gets used for another purpose without violating the text of the law, I don't know what the courts make of that.

 

On the other hand, when you look at what Trump has said, it's clear he's using the NEA to subvert the will of congress and run end round their constitutional authority to distribute funds. I don't even think that point is arguable. He's said it so bluntly so many times. So the question is, does that actually matter?

 

The complaint has some other smaller legal arguments. He might not have specified the right statues he intends to invoke to get the money he wants, there might be a real question as to if the Military is "required" for this emergency, and there might be an environmental issue, but mostly it seems like the complaint is centered around the idea that the President shouldn't be able to subvert congress through the NEA.

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4 hours ago, TwinIon said:

 

 

On the other hand, when you look at what Trump has said, it's clear he's using the NEA to subvert the will of congress and run end round their constitutional authority to distribute funds. I don't even think that point is arguable. He's said it so bluntly so many times. So the question is, does that actually matter?

 

 

So the question is, if his order gets upheld and he does appropriate funds to build any of the wall, does that set precedence for future Presidents to do the same on any scale? Could a Democrat President declare an educational emergency and get billions to build new schools? Could a Republican President declare a military emergency and get billions to hire a force of military contractors outside the military's chain of command?

 

Like, where does it end if the precedent is set that the executive branch can now approve spending measures unilaterally? And then what is the point of Congress? 

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14 minutes ago, CitizenVectron said:

 

So the question is, if his order gets upheld and he does appropriate funds to build any of the wall, does that set precedence for future Presidents to do the same on any scale? Could a Democrat President declare an educational emergency and get billions to build new schools? Could a Republican President declare a military emergency and get billions to hire a force of military contractors outside the military's chain of command?

 

Like, where does it end if the precedent is set that the executive branch can now approve spending measures unilaterally? And then what is the point of Congress? 

 

For the executive, I can see the idea of moving military money to cover "emergency" costs. I don't see how that would work moving other federal dollars into the military. That said, if this passes muster, I see no reason a future Democratic president couldn't declare a climate change emergency and reappropriate military dollars to green initiatives.

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14 minutes ago, Ghost_MH said:

 

For the executive, I can see the idea of moving military money to cover "emergency" costs. I don't see how that would work moving other federal dollars into the military. That said, if this passes muster, I see no reason a future Democratic president couldn't declare a climate change emergency and reappropriate military dollars to green initiatives.

Especially given that the military has said climate change is a national security threat...

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44 minutes ago, CitizenVectron said:

 

So the question is, if his order gets upheld and he does appropriate funds to build any of the wall, does that set precedence for future Presidents to do the same on any scale? Could a Democrat President declare an educational emergency and get billions to build new schools? Could a Republican President declare a military emergency and get billions to hire a force of military contractors outside the military's chain of command?

 

Like, where does it end if the precedent is set that the executive branch can now approve spending measures unilaterally? And then what is the point of Congress? 

This is exactly why it will die in the courts, the constitution is pretty clear on who gets to spend money and where, Congress.  The only logical explanations are everyone in the WH is completely incompetent or they're just going to say "see we tried, but the deepstate is everywhere!"

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44 minutes ago, CitizenVectron said:

So the question is, if his order gets upheld and he does appropriate funds to build any of the wall, does that set precedence for future Presidents to do the same on any scale? Could a Democrat President declare an educational emergency and get billions to build new schools? Could a Republican President declare a military emergency and get billions to hire a force of military contractors outside the military's chain of command?

 

Like, where does it end if the precedent is set that the executive branch can now approve spending measures unilaterally? And then what is the point of Congress? 

Thing is, it's not unlimited money. Doing this he can only re-allocate money. This specific order is moving: (from page 29)

  • $601 million from the Treasury Forfeiture Fund;
  • Up to $2.5 billion under the Department of Defense funds transferred for Support for Counterdrug Activities (10 U.S.C. § 284); and
  • Up to $3.6 billion reallocated from Department of Defense military construction projects under the President’s declaration of a national emergency (10 U.S.C. § 2808).44

Theoretically, under a national emergency the President can only use funds "that have been appropriated for military construction . . . that have not been obligated.” Thats where the $3.6B is coming from. So while Congress can just decide to spend an extra trillion on the military for no particular reason, even under a national emergency the President can't. 

 

Given all the crazy games that congress plays, it's conceivable that in the future congress appropriates money knowing that the President will use it for an emergency. Imagine the previous GOP congress putting a bunch of extra money into a military construction fund so they didn't have to take the heat for passing specific wall funding. I think it's also possible that future budgets ensure that very little money is available to move, maybe changing the funding mechanisms for future military construction projects such that the President couldn't move those funds.

 

The $2.5B and the $601M is money that I don't even think the President needed an emergency to move. As far as I can tell he doesn't have specific authority to do it. He's just doing it and seeing if he loses in court.

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