National emergency – USA Gov Policy

This article was prepared by the distinguished retired judge, John H. Wilson.

Though there have certainly been questions raised by the declaration of a National Emergency by past Presidents, there has never been the firestorm of opposition that came with this proclamation. In an article published before the declaration was made, Yale Law Professor Bruce Ackerman asserted that President Trump, and any troops working under his direction, would be committing a federal crime if the president diverted “funds from the military budget to pay for a wall, and to use military personnel to build it.”

The Professor’s position was based on the general prohibition from using the military to enforce domestic law, however, his opinion was written prior to the issuance of the actual proclamation, which provides for the use of the “Ready Reserve” (National Guard, for instance) and not the active military. Still, not having a legitimate basis to oppose the declaration of a National Emergency has not stopped anyone from making their opposition known. Congressman Adam Schiff (D-CAL) claimed that President Trump didn’t have the authority, and that the idea was a “non-starter.”

A coalition of 18 states have filed a lawsuit against President Trump to challenge the declaration of a National Emergency under these circumstances. Predictably filed by the Attorney General for California in a California federal court, the text of the complaint reads more like a political manifesto than a legal document, and ironically, the only states participating in the lawsuit that are actually on the Southern Border are California and New Mexico. The rest are the usual Trump resistors, such as New York, Illinois and New Jersey (states which also happen to have large Sanctuary Cities).

In turn, the Attorney Generals of Texas, Louisiana and Indiana have asserted that President Trump’s invocation of his power to declare a National Emergency is lawful.

Regarding the States’ legal action, as President Trump stated at his February press conference when he declared his intentions, “we will have a national emergency, and we will then be sued, and they will sue us in the Ninth Circuit, even though it shouldn’t be there, and we will possibly get a bad ruling and then we will get another bad ruling, and then we will end up in the Supreme Court, and hopefully we will get a fair shake and win in the Supreme Court.”

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Of more interest is the action taken by Congress in response to the President’s declaration. Invoking their power to terminate a National Emergency under Section 202(a)(1) of the 1976 Act, first the House, and then the Senate voted to block the proclamation. The measure passed both houses, however, the Senate vote fell short of the two-thirds majority necessary to block the President’s veto. That veto came the very next day, the first of the Trump Presidency. Congress plans to hold a vote to override the veto, but it does not appear as of this writing that there are sufficient votes to override.

Lost in the weeds of this ongoing drama between Congress, the Sanctuary City States, and the President, is the reason for the declaration of a national emergency. The facts speak for themselves; In 2018, the US Citizenship and Immigration Service received approximately 106,000 new asylum requests from those admitted legally, compared to only 25,500 in 2008; and Immigration courts received approximately 160,000 asylum requests in 2018, compared to only 42,000 in 2008. Further, in the last 6 months of 2018, arrests of illegal immigrants along the Southern border increased by 4,000 percent. There is no reasonable view of this evidence that will not support the declaration of a National Emergency at the US-Mexico border.

Thus, we are led back to the question with which we began. Why would the declaration of a National Emergency over a flu epidemic be greeted with support, while the mobilization of forces to halt a substantial increase in illegal migration be met with such vehement resistance?

The heart of the answer may be found not in what Emergency is being declared, but in who is exercising the power.

Photo: Supervisory Border Patrol Agent Kevin Hecht crawls through the drainage pipe looking for evidence left behind by the illegal tunnelers. (U.S. Border Patrol)

This article was prepared by the distinguished retired judge John H. Wilson.

In 2009, then-President Barack Obama declared a National Emergency to combat an outbreak of Swine Flu. At that time, no one seriously argued that this was an overreach and abuse of the President’s powers, and in fact, the then-Senate minority leader, Mitch McConnell (R-KY), pledged his support for the President.

How then could it be that just 10 years later, an exercise of Presidential power to combat a significant increase in illegal immigration at the US-Mexico border is suddenly an abuse of power?

Under the National Emergencies Act of 1976, Title II, Section 201 (a), “during the period of a national emergency…the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.”

Such Emergencies are not supposed to last forever. Under Section 202(a), “(a)ny national emergency declared by the President in accordance with this title shall terminate if— (1) Congress terminates the emergency by concurrent resolution; or (2) the President issues a proclamation terminating the emergency.”

The Authority to declare a National Emergency is not open-ended. Under Section 301, “When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.” This is an important proviso, preventing any President from declaring a National Emergency without reference to existing laws which empower the government to act in the first place.

Since 1976, President Trump’s predecessors have declared 54 National Emergencies. 28 are still in effect. 11 of those were declared by President Obama out of a total of 13. 10 by President Bush are still in effect of the 12 he declared. 17 were declared by President Clinton – 6 remain outstanding. President Carter only declared 2, but one of those remains outstanding (dated November 14, 1979, blocking the property of the Iranian Government under the jurisdiction of the United States). Only President Reagan (6 declared Emergencies) and President Bush the Elder (4) closed all Emergencies they declared in the course of their administrations.

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Of the 28 still in effect, the majority block the assets of countries and/or persons involved in actions such as “Contributing to the Conflict in Somalia” (declared April 12, 2010) or “Engaging in Significant Malicious Cyber-Enabled Activities” (declared April 1, 2015).

As required by Section 301, a declaration of a National Emergency must state the basis for the President’s exercise of his power to declare an Emergency. For instance, on February 25, 2011, President Obama blocked “Property and Prohibit(ed) Certain Transactions Related to Libya.” In his declaration, the President cited to the International Emergency Economic Powers Act, 50 USC 1701, which gives the President the power to “deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.”

Exercising his power to declare a National Emergency, on February 15, 2019, President Donald Trump issued a proclamation “Concerning the Southern Border of the United States.” “I hereby declare” the document states, “that this emergency requires use of the Armed Forces and…that the construction authority provided in (the) United States Code, is invoked and made available, according to its terms, to the Secretary of Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military departments.” The declaration also provides authority to the Secretary of Defense, and to the Secretaries of the various military departments, to “order as many units or members of the Ready Reserve to active duty as the Secretary concerned, in the Secretary’s discretion, determines to be appropriate to assist and support the activities of the Secretary of Homeland Security at the southern border.”

The President grounded his authority in two laws; 10 USC Section 12302, which provides for the “Secretary concerned” to “order any unit..to active duty for not more than 24 consecutive months” in the event that the President declares a National Emergency; and 10 USC Section 2808, which provides for “Construction authority in the event of a declaration of war or national emergency.”

The report concludes tomorrow

Photo: President Trump delivers State of the Union address (White House photo)

Quick Analysis

Ukraine’s Frozen Conflict

As we approach winter in the northern hemisphere, the war in Ukraine is beginning to resemble a “frozen conflict” from many perspectives. Ukrainian President Volodymyr Zelensky recently told the media he hopes the war will end faster once President-elect Trump takes over in January. Opinions in Moscow, however, differ from that of the Ukrainian leader. Russian President Vladimir Putin argues that the North Atlantic Treaty Organization (NATO) needs to exclude Ukraine from joining in “exchange” for peace. If it does not, he says, then no end to the war is in sight. So far there is no Christmas solution. Several NATO countries, according to Vladimir Socor of the Jamestown Foundation, are tentatively considering “coalitions-of-the-willing” to provide security for Ukraine outside of the formal NATO framework. There is, however, no collective mechanism today under which such an arrangement is viable. According to the NATO Charter, while Ukraine is a NATO partner country, it may not join as a full member since it has not fulfilled the requirements for membership. That has not stopped NATO and allies from continuing “to provide Ukraine with unprecedented levels of support, helping to uphold its fundamental right to self-defence,” according to the organization. Socor says that keeping Ukraine out of NATO will not advance peace with Russia. Waiting for a peace settlement, he suggests, would only serve to encourage Moscow to continue the war indefinitely. Although the Biden Administration officially withdrew its support for Ukrainian membership in 2021, NATO maintains an “open door” policy toward membership-seeking countries. The current White House position led the way for European states to oppose Ukraine’s membership saying that a decision should be delayed until “conditions are met.” Biden pushed for changing “open door” to a “bridge” metaphor. It is not intended as an across-the-board NATO policy and has been implemented in the past on a case-by-case basis, says Socor. “The alliance’s open-door policy was not fully insulated from Russia’s non-statutory blocking power, and NATO-aspirant countries’ path toward membership was not always irreversible.” Russia has successfully blocked states like Georgia from joining, first in 2008 and again after the war in Ukraine began in 2014. Russia recognizes the value add of Ukraine to NATO is enormous and that Kyiv has a better case than some other nations. Putin’s invasion was, in part, intended to foreclose that option. By 2021, Moscow was pushing hard to maximize its war objectives, which included further annexations of Ukrainian territory. A main goal for Putin was, and is, to ensure there is no Ukraine left to join NATO. As President-elect Trump prepares to assume office in January, he is faced with the historical challenges presented by the war. Post-conflict security guarantees were the center of several proposals made during the 2023 military stalemate. The incoming Trump Administration has yet to outline how it intends to handle the Russia-Ukraine war. Analysts in Washington believe that the new Administration will expect its European allies to guarantee the majority of Ukraine’s security needs. As we approach 2025, several European nations have acknowledged that they do not view Ukraine as eligible for NATO membership as it would draw the organization into the middle of the conflict. Others want to wait until the war is over or pending a “peace” settlement before considering Ukrainian membership. Socor reports that some “influential voices” are suggesting that “Kyiv should join NATO after “freezing” the war along a stable armistice line, de facto accepting Ukraine’s partition, with NATO security guarantees applying de jure to the government-controlled territory only.” This would mean starting accession talks soon with the actual talks to commence only after a ceasefire is in place. Trump arrives in Washington at a time when Putin’s hybrid strategies of war in Ukraine have eviscerated commonly-held differences between war and peace. “Absent a political consensus in NATO over Ukrainian membership, certain European allies, including France’s President Emmanuel Macron, are holding informal consultations about post-conflict security guarantees to Kyiv by NATO members outside of NATO’s framework,” according to the Jamestown Foundation. The Biden Administration downplayed the discussions on possible forms of military assistance and defense industry cooperation by sending only an Assistant Secretary of State. For a European peace to hold the Trump Administration would need to formally extend the United States’ nuclear deterrence to Ukraine. Options under discussion in Europe include a “coalition of the resolute” to deploy forces to Ukraine as part of a possible armistice package, deterring further Russian attacks, says Secor. European officials are also debating, without any agreement, whether its military forces could perform non-combat logistical roles to free Ukrainian forces to fight. None of the possible courses of action has moved forward as all eyes are waiting on the incoming Trump Administration for clues about its intended level of support for a NATO framework and other non-NATO proposals. Daria Novak served in the U.S. State Dept.