National Emergency Declaration

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trunkage:

Contraction? Trump has been pushing the limits of what a president is allowed to do. He's been expanding what a president normally does into what a president is technically allowed to do. The US never needed to that (at least on a regular basis). It's not a contraction, it's like a teenager or toddler testing boundaries.

When's the last time there were boundaries to test? Clinton? We had 16 years of presidents playing Risk in the Middle East. Trump unilaterally tries to pull out of Syria and the senate votes to slap him across the face. Balance of powers is coming back in a big way.

Saelune:

Now you would vote for him? Now? The Trump that is definitively racist, sexist, trans and homophobic, as well as insanely incompetent...and insane? THAT is the Trump you would now vote for?

All the turds being indicted by Mueller are out, Steve Bannon got the boot, the chaos the prevented anything from happening for most of the first year settled down. His rhetoric has gotten better (as awful as it still is). Most importantly, he's signed the bills brought to him. I expected a buffoon who every time they tried to pass something he'd go "this isn't good enough, I want a better deal, I'm a deal guy, deal with me, deeeeaaaaal." His words have been outrageous, but his actions have been actually really reasonable.

tstorm823:

trunkage:

Contraction? Trump has been pushing the limits of what a president is allowed to do. He's been expanding what a president normally does into what a president is technically allowed to do. The US never needed to that (at least on a regular basis). It's not a contraction, it's like a teenager or toddler testing boundaries.

When's the last time there were boundaries to test? Clinton? We had 16 years of presidents playing Risk in the Middle East. Trump unilaterally tries to pull out of Syria and the senate votes to slap him across the face. Balance of powers is coming back in a big way.

Saelune:

Now you would vote for him? Now? The Trump that is definitively racist, sexist, trans and homophobic, as well as insanely incompetent...and insane? THAT is the Trump you would now vote for?

All the turds being indicted by Mueller are out, Steve Bannon got the boot, the chaos the prevented anything from happening for most of the first year settled down. His rhetoric has gotten better (as awful as it still is). Most importantly, he's signed the bills brought to him. I expected a buffoon who every time they tried to pass something he'd go "this isn't good enough, I want a better deal, I'm a deal guy, deal with me, deeeeaaaaal." His words have been outrageous, but his actions have been actually really reasonable.

You clearly are unaware of what happened to Manafort and Stone, and hell, probably Cohen too.

tstorm823:

trunkage:

Contraction? Trump has been pushing the limits of what a president is allowed to do. He's been expanding what a president normally does into what a president is technically allowed to do. The US never needed to that (at least on a regular basis). It's not a contraction, it's like a teenager or toddler testing boundaries.

When's the last time there were boundaries to test? Clinton? We had 16 years of presidents playing Risk in the Middle East. Trump unilaterally tries to pull out of Syria and the senate votes to slap him across the face. Balance of powers is coming back in a big way.

The whole War on Terror. GFC. They were two of the last two presidents. Here's the thing. They did it on one front, not multiple front at one time. And you still haven't explained how there's a contraction of power. If congress disagrees with a president that's not a contraction. That's called checks and balances.

ACA was never like how Obama intended. Obama wanted troops out of Afghanistan but that was denied to him. He wanted a particular person on the Supreme court with the GOP denied him for over a year. Are these all "contractions of power" too

trunkage:

The whole War on Terror. GFC. They were two of the last two presidents. Here's the thing. They did it on one front, not multiple front at one time. And you still haven't explained how there's a contraction of power. If congress disagrees with a president that's not a contraction. That's called checks and balances.

ACA was never like how Obama intended. Obama wanted troops out of Afghanistan but that was denied to him. He wanted a particular person on the Supreme court with the GOP denied him for over a year. Are these all "contractions of power" too

Yes. Why should the ACA be like how Obama intended? Writing and passing legislation isn't the president's job. Why should the president make decisions of war without Congress? Why should the president get to bypass Senate approval for appointments? The last one's a bit contentious, and there should probably be a rule in place mandating a vote be taken for an appointment like that, but it's not the president who was robbed of power there, it's the rest of the Senate. At any rate, the Legislative branch of government has pushing their job off onto the other two branches (who don't have to deal with troublesome democracy) for years, and any step back from that is a step further from tyranny.

tstorm823:
Most importantly, he's signed the bills brought to him. I expected a buffoon who every time they tried to pass something he'd go "this isn't good enough, I want a better deal, I'm a deal guy, deal with me, deeeeaaaaal." His words have been outrageous, but his actions have been actually really reasonable.

And the funding deal that he agreed to sign, until the right-wing talking heads criticised it, causing him to go back on his word-- is that just an exception?

tstorm823:

Somebody has to come in here and fix the perspective. This isn't a loophole. This is a power granted to the executive by the legislature, which there are procedures for, and official means of oversight. This is less of a loophole than executive orders are a loophole.

I think the reason this will go to the courts is because a national emergency is not whatever the executive says it is. It is an abnormal situation that cannot be adequately resolved by conventional process of lawmaking. It cannot reasonably be described as a state of affairs that has existed for years (decades, even) without crisis, and nor can anyone reasonably argue that the normal legislative process is unequipped to deal with it - it's merely unwilling to deal with it.

Trump is a president opposed by a lot of the representatives of the party he ran under,

In that case, we'd expect they're reliably voting his preferred measures and appointments down. They're not. So this is untrue.

who is under perpetual FBI investigation and open threats of impeachment,

He's under one, long-running FBI investigation. He's not the first entity that's been under a long-running FBI investigation either. Those of us with memories going back 10-years could remember numerous impeachment threats made against Obama, too. Never mind that very long-running movement accusing him of ineligibility to hold the office of president.

who has massively reduced the number of regulations imposed by the executive branch, and who is trying to have things done through proper legal channels, and it's likely that one or both of the other branches of government are going to deny him that. This presidency is an unprecedented contraction of executive power, and for some reason people are claiming he's moving towards dictatorship. It's unreasonable.

No no no no no. When talking about power, you have to draw a distinction between the ability to exercise a power, and actually exercising it. Just because a power is not currently used does not mean it does not exist. (Although even then, Trump is for example issuing executive orders at a rate ~30% higher than Obama did.) Trump has reduced regulations (chiefly on businesses and the rich), but he has not reduced in the slightest the power of the president over such regulations.

Meanwhile, Trump has tried to argue he's immune from indictment and prosecution. He's claimed he can pardon himself. He's attempting to use national emergency law to circumvent the legislature. He has arguably been threatening to obstruct investigations of him. He resists transparency in his non-political dealings, thinking his potential conflicts of interest are outside public purview. In his defence, this has more been at the level of rhetoric than concrete action. On the other hand, he has just installed as Attorney General a man who appears to share the belief of widespread executive immunity, and whether any of this or not, the consistent tone that the president should be in many respects above the law is extremely alarming and deserves to be termed autocratic.

Agema:

Meanwhile, Trump has tried to argue he's immune from indictment and prosecution. He's claimed he can pardon himself. He's attempting to use national emergency law to circumvent the legislature. He has arguably been threatening to obstruct investigations of him. He resists transparency in his non-political dealings, thinking his potential conflicts of interest are outside public purview. In his defence, this has more been at the level of rhetoric than concrete action. On the other hand, he has just installed as Attorney General a man who appears to share the belief of widespread executive immunity, and whether any of this or not, the consistent tone that the president should be in many respects above the law is extremely alarming and deserves to be termed autocratic.

But the president is above the law. They aren't wrong. We have impeachment and removal procedures to take a president out of office before charging them because they are effectively above the law. Not for their own sake, but for the sake of the position, because allowing people to order the arrest of a sitting president would be an outrageous mistake, and allowing a president to be convicted in a court of law while serving would be a giant mess. So we impeach them in Congress and remove them first, because while you're president, you are above the law.

Good, let him do that, and let a democratic president declare a national emergency over climate change, guns, healthcare, and or etc.

As long as the person in question is not Bloomberg, we should be good.

tstorm823:

But the president is above the law. They aren't wrong. We have impeachment and removal procedures to take a president out of office before charging them because they are effectively above the law. Not for their own sake, but for the sake of the position, because allowing people to order the arrest of a sitting president would be an outrageous mistake, and allowing a president to be convicted in a court of law while serving would be a giant mess. So we impeach them in Congress and remove them first, because while you're president, you are above the law.

No, the US president is not above the law. He just has a different set of rules regarding how the law deals with him in certain circumstances. Likewise so does the military have some different legal systems, but they aren't above the law either. Whether a president can be criminally indicted by conventional process is legally unclear. One might note, however, that SCOTUS denied Nixon's claims of special privilege to not hand over information, and it ruled Clinton could face claims in a civil court whilst president. Perhaps most worrying is Trump's threat to self-pardon. SCOTUS would also decide whether a president had the right to pardon himself (if he ever tried) - and I would figure very likely not.

tstorm823:

trunkage:

The whole War on Terror. GFC. They were two of the last two presidents. Here's the thing. They did it on one front, not multiple front at one time. And you still haven't explained how there's a contraction of power. If congress disagrees with a president that's not a contraction. That's called checks and balances.

ACA was never like how Obama intended. Obama wanted troops out of Afghanistan but that was denied to him. He wanted a particular person on the Supreme court with the GOP denied him for over a year. Are these all "contractions of power" too

Yes. Why should the ACA be like how Obama intended? Writing and passing legislation isn't the president's job. Why should the president make decisions of war without Congress? Why should the president get to bypass Senate approval for appointments? The last one's a bit contentious, and there should probably be a rule in place mandating a vote be taken for an appointment like that, but it's not the president who was robbed of power there, it's the rest of the Senate. At any rate, the Legislative branch of government has pushing their job off onto the other two branches (who don't have to deal with troublesome democracy) for years, and any step back from that is a step further from tyranny.

The War on Terror also included Gitmo, airport security, drone double taps, amry leaks and calling the whistleblowers traitors and PRISM, just to name a few.

So you agree. Congress should step up and block a president from enacting a law against the interests of the US. Like, if a president had been manufacturing a crisis. Particularly when Obama put up fences and paid an army that effectively reduced walk ins to the US border. And as soon as Trump stop this program, migrant caravans increased in frequency and size.

Edit Also, Contraction of power. I haven't forgotten. Where the evidence for this

Agema:

tstorm823:

But the president is above the law. They aren't wrong. We have impeachment and removal procedures to take a president out of office before charging them because they are effectively above the law. Not for their own sake, but for the sake of the position, because allowing people to order the arrest of a sitting president would be an outrageous mistake, and allowing a president to be convicted in a court of law while serving would be a giant mess. So we impeach them in Congress and remove them first, because while you're president, you are above the law.

No, the US president is not above the law. He just has a different set of rules regarding how the law deals with him in certain circumstances. Likewise so does the military have some different legal systems, but they aren't above the law either. Whether a president can be criminally indicted by conventional process is legally unclear. One might note, however, that SCOTUS denied Nixon's claims of special privilege to not hand over information, and it ruled Clinton could face claims in a civil court whilst president. Perhaps most worrying is Trump's threat to self-pardon. SCOTUS would also decide whether a president had the right to pardon himself (if he ever tried) - and I would figure very likely not.

Which one of you is right? Now it will be tested:

https://www.nbcnews.com/politics/donald-trump/national-emergency-do-state-lawsuits-have-chance-against-trump-n973061

https://www.scribd.com/document/399944861/State-of-CA-Et-Al-vs-Trump-Et-Al-CASE-319-Cv-00872

May Justice prevail.

CaitSeith:
Which one of you is right? Now it will be tested:

https://www.nbcnews.com/politics/donald-trump/national-emergency-do-state-lawsuits-have-chance-against-trump-n973061

https://www.scribd.com/document/399944861/State-of-CA-Et-Al-vs-Trump-Et-Al-CASE-319-Cv-00872

May Justice prevail.

It's going to be interesting, especially this statement in his speech...

"I could do the wall over a longer period of time. I didn't need to do this. But I'd rather do it much faster."

When I was watching it, that immediately jumped out at me. I couldn't believe he had just said that. His lawyers probably shit a squirrel. But we'll see what the courts think. It may not end up hurting him. It will be decided by their abstract interpretation of the law.

The Senate voted to overturn the emergency declaration by 59-41, with 12 Republicans voting with a united Democratic senate caucus. It's 8 short of the 67 needed to overturn a veto should the resolution be brought up again following the veto.

More likely than not, the fight will go to the courts, which will likely be decided (eventually) at the Supreme Court. There's a lot of reasons why the court would go in either direction on this one, with almost all of them involving some split depending on the importance of certain doctrines.

In order of what I think is the most-likely to least-likely means of determining the validity of the action (I can go into more detail if someone wants me to):

- Statutory intent: In favor of the president. The statute in question is silent on what criteria, if any, are required to establish a legitimate emergency declaration by the president. Furthermore, the statute in question has a mechanism where if the Congress disagrees, they can pass a resolution to overturn the president.

- The political question doctrine: in favor of the president. The question brought to the court fundamentally is a question between the branches that is political, not legal.

- Due Process: In favor of the congress. Without proper findings of fact and the clear public and on the record statements to the contrary, the emergency declaration constitutes an arbitrary use of power and is thus in violation of due process.

- Separation of powers: In favor of the congress. The emergency declaration fundamentally infringes on the powers delegated to congress, and is thus unconstitutional.

All in all, I think we're just going to need to buckle up for a long court fight over this.

Tireseas:
The Senate voted to overturn the emergency declaration by 59-41, with 12 Republicans voting with a united Democratic senate caucus. It's 8 short of the 67 needed to overturn a veto should the resolution be brought up again following the veto.

More likely than not, the fight will go to the courts, which will likely be decided (eventually) at the Supreme Court. There's a lot of reasons why the court would go in either direction on this one, with almost all of them involving some split depending on the importance of certain doctrines.

In order of what I think is the most-likely to least-likely means of determining the validity of the action (I can go into more detail if someone wants me to):

- Statutory intent: In favor of the president. The statute in question is silent on what criteria, if any, are required to establish a legitimate emergency declaration by the president. Furthermore, the statute in question has a mechanism where if the Congress disagrees, they can pass a resolution to overturn the president.

- The political question doctrine: in favor of the president. The question brought to the court fundamentally is a question between the branches that is political, not legal.

- Due Process: In favor of the congress. Without proper findings of fact and the clear public and on the record statements to the contrary, the emergency declaration constitutes an arbitrary use of power and is thus in violation of due process.

- Separation of powers: In favor of the congress. The emergency declaration fundamentally infringes on the powers delegated to congress, and is thus unconstitutional.

All in all, I think we're just going to need to buckle up for a long court fight over this.

There's also the matter of precedence. The 1952 case of Youngstown Sheet and Tube Company vs. Sawyer saw the Supreme Court declare President Truman's attempts to nationalize the steel mills in response to a strike in the Korean War to be unconstitutional. The court found that the President had no authorization to seize private property during a national emergency unless specifically authorized by the Constitution or an Act of Congress. As so aptly summed up recently: "If Harry Truman couldn't nationalize the steel industry during wartime, this President doesn't have the power to declare an emergency and build a multi-billion dollar wall on the border."

Then of course there's the matter of Trump pretty much laying bare the fact that this was an arbitrary decision on his part in the hopes of speeding things along. And I quote: "I want to do it faster. I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do it much faster". That's damning for this declaration under most reasonable definitions.

Tireseas:
The Senate voted to overturn the emergency declaration by 59-41, with 12 Republicans voting with a united Democratic senate caucus. It's 8 short of the 67 needed to overturn a veto should the resolution be brought up again following the veto.

I think this is a particularly interesting question. The Republicans on Trump's side are largely there based on the issue of the wall itself. Those who went against mostly were arguing against the use of emergency powers against the will of congress. Another vote taken after the veto would necessarily be aimed more at the second question. It really isn't impossible that lawmakers who voted to allow emergency funding would flip over and vote against the president's ability to veto a bill reprimanding the president, now that the initial bill to end the emergency passed with a strong majority.

Asita:

Then of course there's the matter of Trump pretty much laying bare the fact that this was an arbitrary decision on his part in the hopes of speeding things along. And I quote: "I want to do it faster. I could do the wall over a longer period of time. I didn't need to do this, but I'd rather do it much faster". That's damning for this declaration under most reasonable definitions.

Whether it's arbitrary doesn't matter: whether it's legal does. If this does pass the courts, it means the USA has a gaping hole in its Constitutional checks and balances that the legislature needs to urgently fill, because the president can arbitrarily assume extraordinary powers with only small minority support from the legislature. Get yourself the backing of 34 Senators, you too can all but declare yourself dictator.

I find stuff like this interesting, because... well, this seems to me to be all part of a rich history of is how democracies stop being democracies. Steadily increasingly abuses of power and erosions of democratic norms, coupled with national polarisation. The polarisation matters because the public and their representatives who rely on their votes take beating their opponents over stability, and overlook abuse when it serves their ends: the rest is tit-for-tat and arms race.

Agema:
If this does pass the courts, it means the USA has a gaping hole in its Constitutional checks and balances that the legislature needs to urgently fill

It won't, of course, if it needs to.

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