Why Trump will win the wall fight

Why Trump will win the wall fight

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-legislaturee to question the agendas of the political branches. They will gladly send Congress to hell. It only needs to point to the destination.

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.

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.

Start with the National Emergencies Act of 1976. Presidents have long declared emergencies based on their inherent executive authority. The use of that authority produced some conflicts with Congress, the most famous seen in the case of Youngstown Sheet & Tube Company versus Charles Sawyer, in which the Supreme Court declared that the federal seizure of steel mills during the Korean War was unconstitutional because Congress had never granted President Truman that authority.

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.

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.

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 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.

Many of them, like Pelosi, denounce this unilateral action by Trump yet ecstatically supported the unilateral actions by Obama, including his funding of some critical parts of the Affordable Care Act after Congress denied any funds. Democrats insist Trump can be challenged on his use of emergency authority since they do not believe an emergency exists on the southern border. They will fail spectacularly if the case gets to the Supreme Court. While the source of funding can be challenged, there is no compelling basis to challenge the national emergency declaration.

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.

Source:>>>>>>>>>>>>>>>>>>>>>>>Here

Share your thoughts with the world by posting a message on the Liberty Tree.

Tell Us What Liberty Means To You 

One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors. -- Plato (429-347 BC)

TRY THE LIBERTY TREE AD FREE

THE LIBERTY TREE FRIENDS & PATRIOTS

 "FIGHTING FOR FREEDOM AND LIBERTY"

and is protected speech pursuant to the "unalienable rights" of all men, and the First (and Second) Amendment to the Constitution of the United States of America, In God we trust

Stand Up To Government Corruption and Hypocrisy

                                                                                                    

NEVER FORGET THE SACRIFICES

BY OUR VETERANS 

Note: We at The Liberty Tree cannot make any warranties about the completeness, reliability, and accuracy of this information.

Don't forget to follow the Friends Of Liberty on Facebook and our Page also Pinterest, Twitter, Tumblr, Me We and Google Plus PLEASE help spread the word by sharing our articles on your favorite social networks.

LibertygroupFreedom    

The Patriot is a non-partisan, non-profit organization with the mission to Educate, protect and defend individual freedoms and individual rights.

Support the Trump Presidency and help us fight Liberal Media Bias. Please LIKE and SHARE this story on Facebook or Twitter.

WE THE PEOPLE

TOGETHER WE WILL MAKE AMERICA GREAT AGAIN! 

Join The Resistance and Share This Article Now!

TOGETHER WE WILL MAKE AMERICA GREAT AGAIN!
Help us spread the word about THE LIBERTY TREE Blog we're reaching millions help us reach millions more.

‼️️ ♻️ PLEASE SHARE ♻️ ‼️️

Please SHARE this now! The Crooked Liberal Media will hide and distort the TRUTH. It’s up to us, Trump social media warriors, to get the truth out. If we don’t, no one will!

Share this story on Facebook and let us know because we want to hear YOUR voice!

Facebook has greatly reduced the distribution of our stories in our readers' news feeds and is instead promoting mainstream media sources. When you share with your friends, however, you greatly help distribute our content. Please take a moment and consider sharing this article with your friends and family. Thank you

❦❧❧❦❧❦❧❦❧❦❧❦❧❦❧❦❧❦❧❦❧❦❧❦❧❦❧❦❧❦❧❦

For you see, the world is governed by very different personages from what is imagined by those who are not behind the scenes.

  Coningsby: Or The New Generation And, The governments of the present day have to deal not merely with other governments, with emperors, kings, and ministers, but also with the secret societies which have everywhere their unscrupulous agents, and can at the last moment upset all the governments’ plans. — Benjamin Disraeli, Speech at Aylesbury, Great Britain, September 10, 1870

◈ ◈ ◈ ◈ ◈ ◈ ◈ ◈