Congress Is Complicit in Trump’s Power Grab

[EasyAce]

By Michael D. Tanner
https://www.cato.org/publications/commentary/congress-complicit-trumps-power-grab

Some 20 years ago, Paul Begala, then an adviser to President Bill Clinton, expressed his marvel at the ability of the president to act unilaterally. “Stroke of the pen. Law of the land. Kinda cool.”

And, of course, we all remember President Obama’s assertion that he could bypass Congress as long as he had “a pen and a phone" . . . In between, President George W. Bush declared unilateral presidential authority to “nullify statutes and court judgments” by refusing to enforce them, acting on the basis of his independent legal judgment . . .

. . . Now, we have President Trump claiming the authority to reallocate funds that Congress had (a) specifically appropriated for other purposes, and (b) specifically refused to appropriate for the uses the president wants.

The legal arguments around Trump’s declaration are unclear. The president’s actions certainly appear to contravene Article I, Section 9 of the Constitution, which says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law …” On the other hand, the National Emergencies Act does give the president a great deal of unilateral discretion. Other presidents have used it at least 59 times to trample on congressional power (though most often for imposing sanctions on foreign companies or individuals, or wartime military projects).

Trump’s use of the statute might be more egregious than most, but it’s neither completely unprecedented nor without foundation. Congress may actually have voluntarily surrendered its authority. And therein lies the bigger problem . . .

. . . It’s easy to understand why presidents would want to try to seize more power. But it’s less clear why Congress would so cravenly surrender its prerogatives — if not cowardice. After all, if Congress has no responsibility for anything, congressmen can’t be held responsible for anything that voters might not like . . . As James Madison warned in Federalist No. 48, “An elective despotism was not the government we fought for; but one in which the powers of government should be so divided and balanced among the several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by others" . . .

[Cyber Liberty]

Rats and Rinos in Congress seem intent on grabbing that power back, now that Trump's in office.

[EasyAce]

Rats and Rinos in Congress seem intent on grabbing that power back, now that Trump's in office.

To which I say, better late than never and what the hell took them so long to take their heads out of their poop chutes and start taking back what they never should have surrendered in the first place no matter who was in the White House?

(Or would anyone prefer a future Democratic president keeping and metastasising the powers fobbed off on or usurped by the executive?)

[roamer_1]

To which I say, better late than never and what the hell took them so long to take their heads out of their poop chutes and start taking back what they never should have surrendered in the first place no matter who was in the White House?

(Or would anyone prefer a future Democratic president keeping and metastasising the powers fobbed off on or usurped by the executive?)

That's my bone to pick in this whole thing too - But it is a hard row to hoe, because most folks seem not to care so long as it is 'their guy' doing the usurping. I sure don't see it that way, because like you have said, sooner or later, there will be a Democrat (or rather, should I say liberal) administration that will use the precedent established here and now, and not only that, but expand it even further.

There is such a 'rub their face in it' attitude right now that folks are not thinking so far as to even consider they are cutting off their nose to spite their face.

Great point.

[Cyber Liberty]

To which I say, better late than never and what the hell took them so long to take their heads out of their poop chutes and start taking back what they never should have surrendered in the first place no matter who was in the White House?

(Or would anyone prefer a future Democratic president keeping and metastasising the powers fobbed off on or usurped by the executive?)

It's hard to answer that, because Congress has been fobbing things off to the Executive, which in turn fobbed it off to a bunch of unaccountable bureaucrats since before I was born.  I just find it fascinating that it took Trump in the White House for this revelation to become the exciting new rule of the day.  (I know it's not new to you, @EasyAce, but it's new to the drooling lapdogs of the press).

[Fishrrman]

Consider the source of this article...

[truth_seeker]

1.Why is it all of a sudden, a "power grab," when several presidents from both parties, have used it in a variety of situations?


2. I can't think of more serious "emergency" circumstances than illegal border crossings, with drugs, people trafficking, crime,  etc. except perhaps diseases.

Wait, diseases may be coming with the illegal entries of the people.

[EasyAce]

Consider the source of this article...

Michael D. Tanner is based at the Cato Institute. The Cato Institute's emphasis is the intellectual and constitutional defense of individual freedom, limited government, and free markets. I'd sooner consider a source like that any minute of the hour.

And it didn't take until the advent of President Tweety for Tanner (or the Cato Institute) to stand athwart executive overreach and other encroachments upon limited and properly construed government. I still wish every Republican was made to read this book before the 2008 primaries:

[roamer_1]

1.Why is it all of a sudden, a "power grab," when several presidents from both parties, have used it in a variety of situations?


2. I can't think of more serious "emergency" circumstances than illegal border crossings, with drugs, people trafficking, crime,  etc. except perhaps diseases.

Wait, diseases may be coming with the illegal entries of the people.

The emergency is not the problem. Using it to discount the expressed will of Congress, and to bypass the House's power of the purse is the problem. This sets up a Constitutional crisis, and he had better walk a hard line, because this is as close to 'impeachable offense' as he has ever been.

[Right_in_Virginia]

This is not a "power grab" --- and the democrats know this.  By statute, the President has the right to declare the national emergency and to reprogram existing federal appropriations in response to the emergency. This is why the democrats are hell bent on convincing the public and the courts that this is not an emergency --- it's their best shot at stopping this.

Trump Is On Solid Legal Ground In Declaring A Border Emergency To Build A Wall
The Federalist, Feb 19, 2019, Sean Davis

[...]

Much news coverage of Trump’s national emergency declaration has suggested that he is unilaterally spending money that has not been appropriated to fund construction of a wall (or fence, or security barrier, or whatever you want to call it) on the U.S. southern border, but that is simply not the case. In fact, the formal declaration of a national emergency on the U.S.-Mexico border cites two specific federal statutes that provide him the legal basis to use emergency funds to secure the border: one authorizing the president to declare national emergencies (50 U.S.C 1601 et. seq.) and the other authorizing the president to reprogram existing federal appropriations in response to an emergency declaration (10 U.S.C. 2808).

Between 2001 and 2014, according to a January 2019 analysis by the Congressional Research Service, Presidents George W. Bush and Barack Obama used those two laws in tandem 18 separate times to reprogram existing appropriations to address national emergencies, so there’s nothing unusual or unprecedented in Trump using the same authorities to respond to national security threats.

[...]

The president’s authority to declare a national emergency established by statute, let us now turn to what authorities the president is granted once a national emergency is declared. Within the context of the emergency border wall debate, that law is 10 U.S.C. 2808, which delegates to the president, in the event of a national emergency that requires the U.S. military, the authority to reprogram existing appropriations for military construction projects in order to address the ongoing emergency. Here is the text of that particular statute:  [...]

There are several important phrases in this particular statute, namely “requires the use of the armed forces,” “military construction projects,” and “necessary to support such use of the armed forces.”

Who determines whether the use of the armed forces is required during a particular national emergency? The simple answer is that such discretion belongs to the president of the United States in the discharge of his duties as commander-in-chief. As Article II of the U.S. Constitution states, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States[.]”

In the absence of federal laws prohibiting the deployment or use of the armed forces (e.g., the Posse Comitatus act prohibits the Army and Navy from engaging in domestic law enforcement), the president’s discretion on whether use of the armed forces is required to secure and defend the United States is absolute.

More:  http://thefederalist.com/2019/02/19/trump-solid-legal-ground-declaring-border-emergency-build-wall/

[skeeter]

Ah, its not a "power grab" if congress is complicit.