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Legality of President’s National Emergency Declaration has tough court path, Cal Poly professor says

Posted at 10:38 PM, Feb 15, 2019
and last updated 2019-02-16 01:47:55-05

President Trump’s move to declare a national emergency along the border is already facing criticism and promises of legal challenges, including from the State of California.

On Friday, both Governor Gavin Newsom and Attorney General Xavier Becerra held a press conference announcing the state plans to sue the Trump Administration.

Michael Latner, an associate political science professor at Cal Poly, says the President’s declaration won’t likely hold up in court, especially after his words kneecapping the argument of the emergency. The president said, “I didn’t need to do this, but I wanted to do the wall much faster.”

“I think [those words] could have an enormous impact,” Latner said. “The nature of the emergency power is there are very clear guidelines.”

In January, legal analyst Danny Cevallos for MSNBC reported the possibility of the declaration’s legality:

The Constitution does little to define national security powers and how the branches of government share them. Article I gives Congress the power to support armies and declare war, and call upon the militia “to … suppress insurrections and repel Invasions.” Congress also has the power to regulate international commerce and establish the rules of naturalization.

Article II vests the president with the oft hazy “executive power,” the power to make treaties, and it names him commander in chief of the armed forces. Left vague is the president’s command over foreign affairs and the relative authority between the two branches in this area. Also vague is the president’s enumerated power during emergencies, other than suspending “Habeas Corpus.”

Accordingly, most of the president’s emergency power derives from statute — laws enacted by the same Congress that might now oppose his actions. The Brennan Center for Justice has identified 136 statutory powers available to the president upon declaration of a national emergency.

So, then, the source and extent of the president’s emergency power is complicated. His authority to act contrary to the wishes of Congress is also complicated. It’s happened before, and the Supreme Court has weighed in.

“It seems to me in this particular circumstances it’s so frankly clearly this is a political decision after facing a defeat that the executive is going invoke powers to do what it couldn’t do in Congress,” Latner said. “It’s such a clear violation of the intents of the law.”

Newsom and Becerra agree the declaration is invalid.

“He can’t do this because the U.S. Constitution gives Congress, not the president, the power to direct dollars; the power of the purse,” Becerra said.

Newsom pointed to the dollars needed for natural disasters including here in California after a devastating wildfire year.

“It’s interesting that we are here today, talking about an emergency, when $12 billion was appropriated by the House of Representatives and the Senate and the President are not moving that money to not only California for disaster relief, for real emergency, but nor are they allowing those dollars to go forward in Georgia and Texas and elsewhere.”

History could show an indication of how, what will likely fall in front of the Supreme Court in record time, the case is decided.

Cevallos also noted:

When the president “takes measures incompatible with the expressed or implied will of Congress,” his power is at its “lowest ebb.” Here, the Supreme Court would have to deny any congressional power to act in the controversy to sustain the president’s exclusive control. In this category, when the president acts in defiance of Congress, he should usually lose — but not always. Indeed, in a 2015 case, the Court upheld the rare exercise of presidential power. 

The declaration has been met with dissent from other Republicans. Expanding executive power creates worry of potential future declarations made if powers change hands to a Democratic president in 2020. The chances of a declaration being made for climate change, gun reform, or other issues Democrats see as a priority are enhanced.

“This was exactly the sort of thing the separation of powers was designed to strip,” Latner said. “So we find ourselves in a very historically unique period right now.”

California officials are reviewing the financial impact the declaration could have on the state.