Trump’s pre­de­ces­sors used act for na­tional emer­gen­cies

Democrats now op­pose wall they once sup­ported

The Washington Times Weekly - - Politics - BY STEPHEN DINAN AND DAVID SHERFINSKI BY S.A. MILLER

Pres­i­dent Bush flexed the Na­tional Emer­gen­cies Act in the days after the 2001 ter­ror­ist at­tacks, Pres­i­dent Carter used it dur­ing the Iran hostage cri­sis and Pres­i­dent Obama tapped it to han­dle the swine flu pan­demic in 2009.

Now it’s Pres­i­dent Trump who is eye­ing the 1976 law, fig­ur­ing it could be his ticket out of the shut­down showdown and could al­low him to build his promised bor­der wall with­out spe­cific fund­ing ap­proval from Congress.

The White House said no de­ci­sion had been made in the run-up to Mr. Trump’s speech on bor­der se­cu­rity, but the pres­i­dent was clearly eye­ing the pow­ers as a vi­able es­cape route.

Con­gres­sional Democrats and lib­eral ac­tivists warned of a con­sti­tu­tional cri­sis and promised that they would fight any emer­gency dec­la­ra­tion in the courts and on Capi­tol Hill.

Po­lit­i­cal an­a­lysts said Democrats would strug­gle to muster the votes to stop Mr. Trump in Congress, and le­gal an­a­lysts said they would be hard-pressed to win with judges.

“At the end of the day, the law al­lows him to de­clare what a na­tional emer­gency is,” said William Cow­den, a for­mer as­sis­tant U.S. at­tor­ney in the Dis­trict of Columbia. “Whether the wall even­tu­ally gets built or not, it gives him an out to go back in and re­open govern­ment.”

Even the Demo­cratic chair­man of the House Armed Ser­vices Com­mit­tee said over the week­end that the law ap­pears to give the pres­i­dent emer­gency pow­ers.

The Na­tional Emer­gen­cies Act emerged after Water­gate and was meant to be a re­straint on the run­away pow­ers of the pres­i­dency by cod­i­fy­ing and lim­it­ing what had been an ex­pan­sive num­ber of dec­la­ra­tions of emer­gency pres­i­den­tial ac­tion.

The law re­quires the pres­i­dent to make the case for the emer­gency and gives Congress a means of try­ing to over­turn his de­ci­sion by pass­ing a res­o­lu­tion of dis­ap­proval.

In the bor­der wall case, Mr. Trump’s goal is to get the mil­i­tary in­volved, tap­ping un­spent Pen­tagon fund­ing to re­di­rect to­ward con­struc­tion.

The De­fense De­part­ment said last month that it had stud­ied the is­sue and con­cluded that it had le­gal au­thor­ity to build a bor­der fence, par­tic­u­larly if it was deemed crit­i­cal to a mis­sion against drug smug­gling.

The Con­gres­sional Re­search Ser­vice iden­ti­fied tens of mil­lions of dol­lars over the past two decades that the Pen­tagon spent on wall con­struc­tion as part of drug in­ter­dic­tion ac­counts.

Trump crit­ics say he could be snared by se­man­tics.

The law al­lows con­struc­tion of roads and fences — while the pres­i­dent, un­til re­cently, in­sisted he was build­ing a wall. He has since changed his rhetoric, but judges may not be sym­pa­thetic.

Con­gres­sional Democrats said Mr. Trump would strug­gle to prove that the bor­der sit­u­a­tion is se­vere enough to jus­tify his use of the mil­i­tary.

“There is no in­va­sion. There is no clear

Con­gres­sional Demo­cratic lead­ers have em­braced the goal of in­creased bor­der se­cu­rity in their fight with Pres­i­dent Trump, propos­ing mea­sures to strengthen U.S. ports of en­try — but omit­ting the bar­rier they sup­ported five years ago.

Those des­ig­nated bor­der cross­ings ac­count for roughly 2.5 per­cent of the 2,000-mile U.S.-Mex­ico bor­der.

The pro­posal also rep­re­sents a small frac­tion of the se­cu­rity mea­sures, in­clud­ing hun­dreds of miles of bor­der fence, that gar­nered broad Demo­cratic sup­port a lit­tle more than five years ago be­fore Mr. Trump en­tered the pic­ture.

Democrats now are lim­it­ing the se­cu­rity mea­sures they back to send­ing more cus­toms of­fi­cials and de­ploy­ing new tech­nol­ogy at the 48 ports of en­try or bor­der cross­ings where cars and trucks line up to seek le­gal en­try into the U.S.

The ef­fort likely would help com­bat the flow of opi­oids and other nar­cotics into the U.S., help­ing achieve a top pri­or­ity for the Trump ad­min­is­tra­tion.

The pro­pos­als, how­ever, don’t in­clude the fence de­manded by Mr. Trump to help se­cure ar­eas of the bor­der that stretch across vast desert wilder­ness.

House Speaker Nancy Pelosi out­lined the Democrats’ vi­sion of bor­der se­cu­rity in a tele­vised re­sponse to Mr. Trump’s prime-time ad­dress about what he called a “hu­man­i­tar­ian and se­cu­rity cri­sis” on the bor­der.

Mrs. Pelosi said ev­ery­one agrees on the need to se­cure the bor­der.

“We can build the in­fra­struc­ture and roads at our ports of en­try. We can in­stall new tech­nol­ogy to scan cars and trucks for drugs com­ing into our na­tion. and present dan­ger, as the pres­i­dent would try to con­vey to the Amer­i­can peo­ple, to scare them and to jus­tify ac­tions oth­er­wise not jus­ti­fied,” said House Ma­jor­ity Leader Steny H. Hoyer, Mary­land Demo­crat.

Democrats say ar­rests of bor­der jumpers are down dra­mat­i­cally from two decades ago, though they have surged this year, with fam­i­lies and chil­dren con­sti­tut­ing an over­whelm­ing num­ber of those test­ing the bor­der.

Mr. Trump also warned about drugs, gang mem­bers and po­ten­tial ter­ror­ists com­ing across the bor­der.

He has said re­peat­edly that he views the sit­u­a­tion as an emer­gency.

Mr. Hoyer, though, com­pared a Trump emer­gency dec­la­ra­tion to a dic­ta­tor’s dec­la­ra­tion of mar­tial law.

He said a law­suit is pos­si­ble but was wait­ing to see what the pres­i­dent would do.

One hur­dle for Mr. Trump would be shift­ing funds from Pen­tagon pro­grams to build the wall. Such de­ci­sions could cost him sup­port of Repub­li­cans. We can hire the per­son­nel we need to fa­cil­i­tate trade and im­mi­gra­tion at the bor­der. We can fund more in­no­va­tion to de­tect unau­tho­rized cross­ings,” she said.

Con­gres­sional Democrats of­ten cite drones as prime ex­am­ples of the innovative tech­nolo­gies avail­able for the rest of the bor­der, but no spe­cific plans have been laid out.

Mrs. Pelosi has called bor­der walls “im­moral” and re­fused to give an inch in ne­go­ti­a­tions over Mr. Trump’s de­mand for $5.7 bil­lion for new bar­ri­ers, Bor­der Pa­trol agents, im­mi­gra­tion judges and other tools to stem il­le­gal im­mi­gra­tion.

Rep. Matt Cartwright of Penn­syl­va­nia, co-chair­man of the House Demo­cratic Pol­icy and Com­mu­ni­ca­tions Com­mit­tee, said it would be fool­ish to build bar­ri­ers in the desert.

“The first thing to fo­cus on are the ports of en­try where all the drugs are com­ing through or the tun­nels,” he said on Fox News. “This is why we’ve in­creased Cus­toms and Bor­der Pro­tec­tion be­cause this is how you stop the en­try of this stuff — not by build­ing walls in places where goats don’t even climb and peo­ple don’t travel.”

Mr. Trump bucked at­tempts to limit the bor­der se­cu­rity de­bate to ports of en­try.

“They don’t come in through check­points; they come through ar­eas where you have hun­dreds of miles with­out walls and with­out bar­rier or with­out strong fences,” Mr. Trump said at the Capi­tol.

The pres­i­dent was on Capi­tol Hill to rally sup­port among Se­nate Repub­li­cans as a par­tial govern­ment shut­down ap­proached three weeks.

He said Repub­li­cans re­mained uni­fied on bor­der se­cu­rity.

The bol­lard-style cor­ru­gated steel bor­der fence now ad­vo­cated by Mr.

“There’s not enough money in DOD the way it is, so any­thing along that line will have to be jus­ti­fied and, like I say, we’ve worked very, very hard, the pres­i­dent’s worked hard to get the ap­pro­pri­ate num­ber of dol­lars into the De­part­ment of De­fense,” said Sen. Mike Rounds, South Dakota Repub­li­can.

He pre­dicted that Mr. Trump would have to sur­vive a le­gal bat­tle.

Mr. Cow­den said the ini­tial out­come of that fight would de­pend on which judges get the case, but he ex­pects the courts even­tu­ally would back Mr. Trump.

“I think what they’re likely to do is say the pres­i­dent has this au­thor­ity to de­clare a na­tional emer­gency. If Congress doesn’t like it, there’s a mech­a­nism in there for Congress to over­ride it,” he said.

The over­ride mech­a­nism is built into the law in a 1980s up­date that cre­ated a process for both the House and Se­nate to pass a res­o­lu­tion dis­ap­prov­ing of an emer­gency dec­la­ra­tion.

House Democrats, who con­trol the Trump once gar­nered broad sup­port among Democrats.

In 2013, ev­ery Se­nate Demo­crat voted for a bi­par­ti­san im­mi­gra­tion re­form bill that in­cluded nearly $8 bil­lion for 350 more miles of bor­der fence.

Se­nate Democrats vot­ing yes in­cluded Mi­nor­ity Leader Charles E. Schumer, Mi­nor­ity Whip Richard J. Durbin, and Sens. Dianne Fe­in­stein, Tim Kaine, Kirsten Gil­li­brand, Mazie K. Hirono, Amy Klobuchar, Robert Me­nen­dez, Richard Blu­men­thal and Sher­rod Brown.

The bill also would have al­lo­cated about $30 bil­lion to hire 20,000 more Bor­der Pa­trol agents. Help­ing se­cure the Democrats’ sup­port, the legislation en­tailed broad changes to im­mi­gra­tion laws and of­fered a 13-year path to cit­i­zen­ship for the ap­prox­i­mately 11 mil­lion il­le­gal im­mi­grants liv­ing in the U.S. at the time.

The cur­rent de­bate does not in­clude pro-im­mi­gra­tion sweet­en­ers. The White House team in­cluded the added scan­ners and man­power at ports of en­try that Democrats sup­port.

White House deputy press sec­re­tary Ho­gan Gi­d­ley said the Democrats’ sup­port for the 2013 bill and a 2006 bill for a bor­der fence showed that their op­po­si­tion to a bor­der wall was “par­ti­san petty pol­i­tics.”

“The pres­i­dent has now put forth a pro­posal that in­cludes a strat­egy to pro­tect the Amer­i­can peo­ple with tech­nol­ogy at our ports of en­try to counter nar­cotics and weapons com­ing into this coun­try, de­ten­tion beds for peo­ple who get into this coun­try il­le­gally, hu­man­i­tar­ian needs and to al­low peo­ple to claim asy­lum in their coun­try of ori­gin. But that in­cludes a steel bar­rier,” he said.

Democrats re­mained united in op­po­si­tion to a bor­der wall.

Dave Boyer con­trib­uted to this re­port. lower cham­ber of Congress, are likely to muster the votes, but Repub­li­cans have a ma­jor­ity in the Se­nate.

The pres­i­dent can veto any mea­sure passed in Congress, mean­ing it would take a two-thirds vote of both chambers to stop him.

Per­haps a big­ger threat to Mr. Trump’s emer­gency pow­ers is landown­er­ship. Even a na­tional emer­gency can’t sur­mount pri­vate prop­erty rights, and much of the land where fenc­ing would be built in Texas is pri­vately owned.

Try­ing to use em­i­nent do­main pow­ers would in­vite a flurry of lit­i­ga­tion that could de­rail con­struc­tion for years. Law­suits are still pend­ing over con­struc­tion dat­ing back to the last ma­jor bar­rier-build­ing spree in the Se­cure Fence Act of 2006.

“If he at­tempts to seize personal land in vi­o­la­tion of the Con­sti­tu­tion, Trump will need to do so in Texas — a state not known for its fond­ness for fed­eral govern­ment over­reach,” the Cen­ter for Amer­i­can Progress said in a memo.

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