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Could Congress Block Trumpís Emergency Declaration?
FiveThirtyEight ^ | February 18, 2019 | Perry Bacon Jr. and Nate Silver

Posted on 02/18/2019 7:56:33 AM PST by 2ndDivisionVet

President Trump has declared a national emergency in order to pay for physical barriers along the U.S.-Mexico border, but will Congress block it? That’s a long shot — but we can’t rule it out either.

Here’s the basic process, as the New York Times explained in an article after Trump’s declaration. Congress can take up a resolution to end a presidential national emergency declaration. If such a resolution passes in one chamber, the other must bring it up for a vote within 18 days. If the resolution passes both chambers and the president vetoes it, a two-thirds majority in Congress can override that veto.

In the House, Democrats say they are strongly considering a resolution to override Trump’s emergency declaration. If they take it up for a vote, the resolution is almost certain to pass — Democrats have a 235-197 majority in the House.

That would move the legislation to the Senate, where Republican Leader Mitch McConnell — although initially wary of Trump declaring a national emergency — has now expressed his support for the move. But there does not appear to be a way for him to avoid a Senate vote on this measure. And such a vote will force Senate Republicans, many of whom have said they are wary of presidents overextending their power at the expense of Congress, to choose between that principle of limiting executive power and backing a president with strong support among party activists on one of his signature initiatives, the border wall.

(Excerpt) Read more at fivethirtyeight.com ...


TOPICS: Issues; Parties; U.S. Congress; U.S. Senate
KEYWORDS: 538; buildthefence; daca; dnctalkingpoint; dnctalkingpoints; dreamact; dreamers; fakenews; fakepolls; fivethirtyeight; mediawingofthednc; natesilver; partisanmediashills; perrybaconjr; presstitutes; smearmachine
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1 posted on 02/18/2019 7:56:33 AM PST by 2ndDivisionVet
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To: 2ndDivisionVet

“choose between that principle of limiting executive power and backing a president”

Didn’t seem to bother them the last 60 times this was done. But I suppose it’s different now, because Trump.


2 posted on 02/18/2019 7:59:41 AM PST by rightwingcrazy (,)
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To: 2ndDivisionVet

So lets work out the scenarios, and in my opinion, Trump can claim a (political) win from any of them

1) It passes the house, but fails to get the votes in the Senate.
This seems most likely to me.
...and all it does is show how the issue is divided along party lines and Trump gets to proceed.

2) Passes both house/senate, but doesn’t have the super majorities, so it gets vetod and dies.
Trump gets to proceed as planned.

3) It gets a Super Majority.
Trump at least gets to say he tried everything, but the swamp won. Republicans and democrats in red states and districts lose their next elections, and Trump gets a firey issue to harp on in 2020


3 posted on 02/18/2019 8:03:31 AM PST by z3n
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To: 2ndDivisionVet

[[[And such a vote will force Senate Republicans, many of whom have said they are wary of presidents overextending their power at the expense of Congress,]]]

LOL. The balless wonders in the GOP let Obama do whatever he felt like for 8 years.


4 posted on 02/18/2019 8:03:33 AM PST by headstamp 2
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To: 2ndDivisionVet

This is why Trump should declare that the judiciary has no say in the response to national emergency. The code below gives congress the responsibility for checks and balances on emergency declarations. They can overrule with joint resolution.

You can’t ensure national security when your response is subject to judicial fiat of 1 or 3 judges.

Cal announced they will file a suit against the declaration. The governor says it interferes with their drug interdiction program (LOL),

no standing for a court or state to over turn an emergency decree. Only congress. But Trump’s stamens this morning indicates he will go through the court process possibly delaying construction till he loses the election.

The court should spank Pelosi and send her back to the house without supper. Below is her recourse.

If he cannot build more than 55 miles, he will not be re-elected.

The president should put the court on notice that they have no standing in national emergencies. The check and balance on the president’s emergency powers is the congress. You can’t respond to emergencies when any judge can overrule your actions.

The congress can terminate a president’s emergency declaration. THAT is the check and balance on presidential power. Trump should tell the court, you have no jurisdictions for emergencies. The country cannot respond to emergencies on the basis of judicial fiat.

HERE IS SOME INFO.

What the Law Does

The NEA authorizes the president to declare a national emergency, which declaration activates emergency powers contained in other federal statutes.3 During the 2009 H1N1 influenza pandemic, the president’s declaration of a national emergency under the NEA, coupled with the HHS secretary’s prior determination of a public health emergency under Section 319 of the Public Health Service Act (PHSA), permitted the activation of Social Security Act (SSA) Section 1135 waiver authorities. (See Figure A for the text of the 2009 H1N1 NEA declaration.)

How the Law Works
The NEA does not provide any specific emergency authority on its own, but relies on emergency authorities provided in other statutes. A national emergency declaration allows for the activation of these other statutory authorities. Emergency statutory provisions are not activated automatically, however; they must be specifically identified in the president’s declaration before these authorities may be given effect.

Declaration
NEA Section 201 authorizes the president to declare a national emergency. The proclamation of a national emergency must be immediately transmitted to Congress and published in the Federal Register.1,2 Under NEA Section 301, statutory emergency authorities enabled by the national emergency declaration cannot be exercised until the president specifies the provisions of law under which the president or other officials will act. Such specification may be made either in the declaration or in subsequent Executive Orders published in the Federal Register and transmitted to Congress.

Termination
A national emergency can be terminated if the president issues a proclamation or if Congress enacts a joint resolution terminating the emergency. A national emergency will terminate automatically upon the anniversary of the proclamation unless the president renews the proclamation by transmitting notice to Congress within a 90-day period prior to the anniversary date and publishing it in the Federal Register.

Immunity and Liability Issues
The national emergency provisions of the NEA do not address liability issues or provide any immunity. The act could be used to activate emergency authorities in other federal statutes that provide immunity during emergency events.

How the Law Affects States
National emergency declarations under the NEA can impact states through the federal statutory emergency authorities activated once the NEA declaration is made. The most recent example of this effect was the activation of SSA Section 1135 waiver authority during the H1N1 influenza pandemic.

FIGURE A
DECLARATION OF A NATIONAL EMERGENCY WITH RESPECT TO THE 2009 H1N1 INFLUENZA PANDEMIC
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
October 24, 2009

“NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.) and consistent with section 1135 of the Social Security Act (SSA), as amended (42 U.S.C. 1320b-5), do hereby find and proclaim that, given that the rapid increase in illness across the Nation may overburden health care resources and that the temporary waiver of certain standard Federal requirements may be warranted in order to enable U.S. health care facilities to implement emergency operations plans, the 2009 H1N1 influenza pandemic in the United States constitutes a national emergency. Accordingly, I hereby declare that the Secretary may exercise the authority under section 1135 of the SSA to temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule throughout the duration of the public health emergency declared in response to the 2009 H1N1 influenza pandemic. In exercising this authority, the Secretary shall provide certification and advance written notice to the Congress as required by section 1135(d) of the SSA (42 U.S.C. 1320b-5(d)).”4


5 posted on 02/18/2019 8:07:12 AM PST by morphing libertarian (Use Comey's Report; Indict Hillary now; build Kate's wall. --- Proud Smelly Walmart Deplorable)
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To: morphing libertarian

from lexisnexis

A joint resolution, H.J. Res. or S.J. Res., is a legislative proposal that requires the approval of both Chambers and the signature of the President, just as a bill does, in order to have the force of law.

Joint resolutions from each House are assigned a number in the order in which they are introduced. Joint resolutions may be introduced in either Chamber and generally are used for limited matters such as continuing or emergency appropriations or the designation of a commemorative holiday.

There is little practical difference between bills and joint resolutions, although only a joint resolution may be used to propose amendments to the Constitution. In the case of a Constitutional amendment, the signature of the President is not required, but three-quarters of the states must ratify the proposed amendment before it can become part of the Constitution.

Prior to the 77th Congress (1941), laws enacted by joint resolutions were numbered separately from bills in the Statutes at Large, but since that time there has been no distinction made between laws that were introduced as bills and laws that were introduced as joint resolutions.


6 posted on 02/18/2019 8:07:48 AM PST by morphing libertarian (Use Comey's Report; Indict Hillary now; build Kate's wall. --- Proud Smelly Walmart Deplorable)
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To: morphing libertarian

states and courts have no standing

Only the congress can overrule an emergency declaration and that is by joint resolution which the president can veto.

The USSC has ruled before during Truman and FDR administrations. On eon internment ofJapanese. But I don’t know if a president has said, the court has no
standing. The check and balance is the congress. You can’t respond emergencies if 1 judge or panel can overrule you. That’s why the CIC has the power.


7 posted on 02/18/2019 8:10:28 AM PST by morphing libertarian (Use Comey's Report; Indict Hillary now; build Kate's wall. --- Proud Smelly Walmart Deplorable)
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To: 2ndDivisionVet
"And such a vote will force Senate Republicans, many of whom have said they are wary of presidents overextending their power at the expense of Congress.."

We have a congress?

8 posted on 02/18/2019 8:11:42 AM PST by chief lee runamok (expect nothing)
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To: z3n

2 and 3 are delusional leftists wet dreams.

Yes Republicans are stupid, but not that stupid.


9 posted on 02/18/2019 8:13:47 AM PST by aquila48
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To: 2ndDivisionVet

Since 1976 all Presidents have declared emergencies. Here are the numbers and the link.

Carter 2
Reagan 6
HW Bush 4
Clinton 17
W Bush 12
Obama 13
Trump 3

https://www.snopes.com/fact-check/presidents-national-emergencies/


10 posted on 02/18/2019 8:15:33 AM PST by Singermom
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To: headstamp 2
The balless wonders in the GOP let Obama do whatever he felt like for 8 years.

But Obama is black and it makes all the difference.

11 posted on 02/18/2019 8:15:37 AM PST by libertylover (Democrats hated Lincoln too.)
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To: z3n

Fiery issue? So what. No wall = Democrat President. He’s left with three choices: 1) shut down ALL immigration, NO exceptions (courts will overrule); 2) let everybody and anybody in (CA and NM only); or 3) resign in disgust and a big FU to what’s left of the geographical entity (least likely).


12 posted on 02/18/2019 8:16:31 AM PST by NTHockey (Rules of engagement #1: Take no prisoners. And to the NSA trolls, FU)
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To: 2ndDivisionVet
Wall Analysis: The Path Ahead (from Zen Master)

My source on all things courts and legal, Zen Master, has weighed in with some excellent information on the path ahead for the Declaration of Emergency.

1. For a case to be heard, it must meet at least these three conditions: standing, ripeness, and aggrieved party.

First, standing: the DoE only affects four states: TX, NM, AZ, and CA.

Only a party in one of those four can bring a suit in the Ninth (CA/AZ), Tenth (NM), or Fifth (TX) Circuit Courts. But even before you can do that, you must be an aggrieved party, meaning you must show direct immediate harm from what is happening (i.e., building the wall). Watch how this plays out in a moment.

Now, it's frequently argued here that a "friendly" party can bring a case immediately in a "friendly" venue (such as the Fifth, which is mostly GOP/conservative but not unanimous).

No. A court would view this as a type of fraud, since the two parties are considered "friendly" and would rule it an abuse of the court. It would be tossed. I don't know, but there might even be legal penalties for bringing such a suit.

Second, this is different from the Travel Ban, which was national and enabled a Hawaiian judge to put a stay on it. Again, this is region and state specific, meaning it will only affect the Ninth, Tenth, and Fifth---but not until the wall starts going up in those states.

Third, no challenge can be brought until a case is "ripe." In OH, Gov. DeWine said he will sight the "Heartbeat Bill," which PP will challenge. But he hasn't signed it yet, so there is no challenge yet.

No "wall" challenge can be made until the case is ripe, meaning until Trump ACTUALLY SPENDS DoE MONEY TO BUILD SOME OF THE WALL.

2. That brings us to the emergency declaration. Congress has already authorized, and Trump signed (which many of you did not want him to sign) a bill with $1.375b to start building the wall.

Trump has also invoked two statutes, 31 U.S.C. section 9705 and 10 U.S.C. section 284 to spend about $3.1b. These statutes don't require an emergency declaration.

There is a third statute, 10 U.S.C. section 2808 with $3.6b which does require an emergency declaration.

Here's the genius of how Trump is doing this: the money will be spent sequentially, with the $3.6b designated under 10 U.S.C. section 2808 (the national emergency money, if you will) spent last.

Trump will spend about $4.7b before he ever gets to the DoE money---and that's the only point at which that DoE can be challenged.

3. Now, there WILL be a Congressional challenge to the authority to do issue this declaration in DC almost immediately, and that (says Zen Master) will be struck down both on standing and ripeness grounds.

4. Go back to standing: the case cannot come up in the Ninth or Tenth Circuses until wall building WITH DoE $$ actually starts there.

Finally, precisely because Congress has just authorized $1.75b for the wall---regardless of the qualifiers---it cannot be argued that Trump's wall is something different (i.e, somehow unconstitutional). In other words, by passing the bill---and by Trump signing it---Congress just MADE IT 100% LEGAL.

13 posted on 02/18/2019 8:16:57 AM PST by NewJerseyJoe (Rat mantra: "Facts are meaningless! You can use facts to prove anything that's even remotely true!")
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To: rightwingcrazy
from https://twitter.com/LarrySchweikart/status/1096796435092103171

Ok, heard it argued "Enviorwhacko groups will bring a bunch of suits" against Trump.

Well, they can't bring suits against a Dec of National emergency by definition, but second, any suit against the Wall has to be . . . wait for it. . .

a suit against the entire BILL that already funded the wall.

Get it? See why Trump was 100% brilliant in signing off on that bill?

No court will declare a budget "unconstitutional." If they identify any part of it, the whole budget (with all the D friendly loopholes) goes too

14 posted on 02/18/2019 8:19:29 AM PST by NewJerseyJoe (Rat mantra: "Facts are meaningless! You can use facts to prove anything that's even remotely true!")
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To: NTHockey

He has another chance at a shut down next October, if I recall correctly.

If for some reason (seems extremely unlikely to me) that his emergency declaration is overridden by super majorities in cogress, then he has no legs to stand on until the election where he can take it to the people. BUT, if he loses it in the courts, he still has the shut-down angle to use against congress to get the funding from them.


15 posted on 02/18/2019 8:21:03 AM PST by z3n
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To: Singermom

And Congress has not terminated any of them according to news reports.


16 posted on 02/18/2019 8:22:46 AM PST by antidemoncrat
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To: 2ndDivisionVet

Let’s see them try.

Bush League Republicans will expose themselves as the enemies of America that some of us recognize them to be.


17 posted on 02/18/2019 8:26:34 AM PST by Lurkinanloomin (Natural Born Citizen Means Born Here of Citizen Parents_Know Islam, No Peace-No Islam, Know Peace)
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To: headstamp 2

LOL. The balless wonders in the GOP let Obama do whatever he felt like for 8 years.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Worse, they let him occupy the office in violation of the Constitution.
Enabled the myriad crimes committed thereafter.


18 posted on 02/18/2019 8:28:06 AM PST by Lurkinanloomin (Natural Born Citizen Means Born Here of Citizen Parents_Know Islam, No Peace-No Islam, Know Peace)
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To: z3n
There is also scenario 1.5) Passes the House but fails cloture in the Senate (lacks 60 votes to proceed). Trump gets to proceed as planned.

This would probably be the best outcome.

-PJ

19 posted on 02/18/2019 8:31:49 AM PST by Political Junkie Too (The 1st Amendment gives the People the right to a free press, not CNN the right to the 1st question.)
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To: morphing libertarian

You’re mixing up a bunch of stuff to create a bunch of nonsense.

Just let the process work, those who know how things actually don’t need it explained.


20 posted on 02/18/2019 8:34:20 AM PST by bigbob (Trust Trump. Trust the Plan.)
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