president declares state of emergency

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.

In such case cheap discount viagra from trusted online pharmacy.How to use?The medicine should be used only under the supervision of a doctor. It in addition augments the reach of this drug and making it levitra pill http://cute-n-tiny.com/cute-animals/top-10-cutest-lion-cubs/ obtainable in an effortlesss method. Pills such as Vimax UK have been long known to help individuals lowest prices for sildenafil overcome erectile dysfunction problems. This physical pressure disrupts the nerve’s function causing pain, tingling, numbness or on line levitra http://cute-n-tiny.com/cute-animals/baby-giraffe-with-a-bottle/ weakness.

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

Judge Merchan continues to deny justice to Donald Trump

In August of 2024, we discussed the US Supreme Court’s decision in Trump v. United States. We described the three tiered system enunciated by Chief Justice Roberts to determine whether or not the actions taken by the President of the United States are entitled to immunity from criminal prosecution or not. The first tier are acts within the President’s constitutionally mandated authority which are subject to “absolute immunity.” The next are acts that may have “presumptive immunity,” and are subject to examination with evidence that rebuts the presumption of immunity. The third are acts which are unofficial, and which enjoy no immunity. In September, we also discussed the effect this decision should have on the New York County criminal case currently pending against President-elect Trump before Judge Juan Merchan. We cited to a CNN report, which described the evidence used against Donald Trump at the trial of that matter: “Trump’s lawyers pointed to testimony at trial – including from White House officials Hope Hicks and Madeleine Westerhout – they argued should not have come before the jury…'[a]ll of Hicks’s testimony concerning events in 2018, when she was serving as the White House Communications Director, concerned official acts based on [Presidential] authority for which President Trump is entitled to absolute immunity,’ Trump’s attorneys argued. ‘[the Supreme Court’s ruling] specifically forbids prosecutors from offering ‘testimony’ from a President’s ‘advisers’ for the purpose of ‘probing the official act.’” Sure enough, as Chief Justice Roberts stated in the Presidential Immunity decision, “[a]llowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.” At the time, we stated that “Judge Merchan allowed testimony regarding Donald Trump’s official acts as President, acts which enjoy absolute immunity and which cannot be used against him, or even be entered into evidence in a criminal trial, a situation which could have been avoided had Judge Merchan delayed the trial until he’d received the guidance of the US Supreme Court.” Nonetheless, we predicted that Judge Merchan “will find a way to justify his actions once again, and let stand the unlawful conviction of former President Donald Trump.” You know how much we hate to say we were right…but…we were right. “This Court…finds that the evidence related to the [President-elect’s] claims relate entirely to unofficial conduct and thus, receive no immunity protections,” Judge Merchan wrote in his December 16, 2024 decision. “Further, even if this Court were to deem all of the contested evidence…as official conduct falling within the outer perimeter of Defendant’s Presidential authority, it would still find that the People’s use of these acts as evidence of the decidedly personal acts of falsifying business records poses no danger of intrusion on the authority and function of the Executive Branch, a conclusion amply supported by non-motive-related evidence.” In so ruling, the Court denied Donald Trump’s motion to dismiss his New York County conviction. Let us examine these findings, in light of the evidence admitted at the President-elect’s trial, and then compare that evidence to the acts granted absolute immunity by the US Supreme Court. In his decision, Judge Merchan discusses the testimony of Hope Hicks, who served as the Communications Director for the Trump White House. “Defendant argues that in her roles at the White House, any communications between Ms. Hicks and Defendant must receive absolute immunity…as Defendant’s ability to speak freely to Ms. Hicks was a core function of the Executive. According to Defendant, because Ms. Hicks wielded executive power on his behalf, authority that exists pursuant to Article II of the Constitution, any communications [President Trump] had with [Hicks] are subject to absolute immunity,” the Court wrote. Judge Merchan also noted that “[t]he People argue that the communications Defendant had with Ms. Hicks…constitute unofficial acts not entitled to any level of immunity.” In his inevitable agreement with the arguments presented by Manhattan DA Alvin Bragg’s office, Judge Merchan wrote “Defendant’s argument that any communication he had with Ms. Hicks is subject to absolute immunity by virtue of the position she held in the White House is mistaken…the President himself may speak in his unofficial capacity as a candidate or party leader, and certainly he can do so in his private capacity as well. Any argument that private conduct transforms into official conduct by communicating about the same to an individual with a particular title is without merit.” Thus, it is Judge Merchan’s position that the conversations Donald Trump had with his Communications Director are not entitled to immunity, even though those discussions were held at the White House, while Donald Trump was serving as President of the United States, merely because those discussions were not related to official Executive Branch activities. Sounds possibly reasonable – until you examine the Presidential Immunity decision more closely. In September, we wrote that “the statement made by Chief Justice Roberts in his majority opinion in the Presidential Immunity case [is significant]; ‘Presidents cannot be indicted based on conduct for which they are immune from prosecution…[t]estimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.’” This statement by Chief Justice Roberts points to a blanket immunity for ANY discussions had between the President and his advisors, regardless of the nature of those communications. Further, we noted that the Supreme Court issued the following warning: “[t]he government…contends that a jury could ‘consider’ evidence concerning the President’s official acts ‘for limited and specified purposes,’ and that such evidence would ‘be admissible.’” In rejecting that argument, Chief Justice Roberts states “[t]hat proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly – invite the jury to examine acts for which a President is immune from prosecution […]