re: Senate can’t veto Emergency Declaration but which R’s will oppose?

Trump

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Pursuant to section 201 of the National Emergencies Act (50 U.S.C. 1621), I hereby report that I have exercised my authority to declare a national emergency

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Section 201(a)says

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In the event the President finds that the proclamation of a national emergency is essential to the preservation, protection, and defense of the Constitution, and is essential to the common de- fense, safety, or well-being of the territory and people of the United States, the President is authorized to proclaim the existence of a national emergency. Such proclamation shall thereupon be made public, and shall be published immediately in the Federal Register.

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Trump

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I have invoked section 2808 of title 10, United States Code, and authorized the Secretary of Defense, and at his discretion, the Secretaries of the military departments, to exercise the authority under that section to engage in emergency construction as necessary to support the use of the Armed Forces and respond to the crisis at our southern border.

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10 USC 2808 does allow the military to engage in construction in the event of a declared emergency.

I suppose one might argue that the NEA does not specifically authorize any action that is not authorized elsewhere in the code, but the NEA clearly does not SAY that.

He linked the military construction yesterday. The definition of military construction doesn’t encompass the wall, IMO

LINK

Military construction invokes NEA, but I need NEA cite requiring national emergency comport to a statutory definition or set of circumstances.

As I understand it now, national emergency in NEA is whatever President declares it to be. If a statutory cite is required, that may go to mitigate Congressional ceding of authority

I know, and who would have thought the star of the Apprentice would one day be President either

Maybe we should restrain presidential authority just in case

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but the NEA clearly does not SAY that.

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shouldnt have stopped at section 201 and read through Section 301.

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He linked the military construction yesterday. The definition of military construction doesn’t encompass the wall, IMO

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I agree with you that the Wall is not remotely in the category of “military construction projects ... necessary to support such use of the armed forces.”

In that post, I was not examining the validity of THIS declaration. but rather the assertion that a POTUS must cite statutory authority OUTSIDE the NEA in order to INVOKE the NEA.

Section 301 does seem to address that question, but the simple fact is that many dozens of statutes ( NYU Law School says 123) delegate authority to the Executive in cases of a declared “emergency.”. As such, it is not pragmatically much of a limitation.

The larger concern remains. Under the NEA, a POTUS can act in a largely-unfettered manner with the support of only 1/3 of Congress ... undertaking actions that can have repercussions for generations.

Like Trump or hate him ... like Obama or hate him ... that is some scary, dictatorial feces.

Edited to correct a number and provide a link

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the purpose of the NEA was to limit the powers previously Delegated to the executive.

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Not exactly. Its purpose was to rein-in the Executive from claiming powers that had NOT been delegated to it.

Congress did not authorize Wioson to seize control of trans-Atlantic shipping. Congress did not authorize FDR to close the banks. Congress did not authorize Truman to seize private property. Etcetera.

Yeah, I think that will help the Administration with the separation of powers argument in that it is not an unfettered grant of power.

I disagree with the wall fitting into the military construction definition you’ve cited, but that’s a much more narrow issue than the validity of the NEA as a whole. I still don’t like the fact that the legislature needs a supermajority to take power back, but it will help the Admin on the front end in that there are enumerated instances.

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disagree with the wall fitting into the military construction definition you’ve cited

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This is by far the best argument. Saying it isn’t an emergency is a non starter...the President has sole discretion. Saying it is an unconstitutional usurpation of power is weak, as congress specifically delegated the power subject to statutory limitations. Whether a wall fits the statute Trump cited in his declaration is by far the best argument against it.

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Can you admit that the NEA allows a President to act (in one of those 123 areas) in an essentially-unfettered manner with the support of only 1/3 of Congress, simply by claiming that there is an “emergency?”

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I absolutely do not consider a 123 statute set unfettered. In fact I consider them carefully considered enumerated issues.

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Nor do I, and that is not remotely what I asked.

WITHIN one of those 123 areas, his power is largely unfettered due to the need for a super-majority in Congress to control him.

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From a broader policy perspective, do you really think that is a good idea?

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I’m torn. For many reasons. None of which have to do with trump.

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None of my posts have been specific to Trump, either. I would love to hear why you are “torn” about allowing a POTUS (either party) to do basically anything he wants to do (in 123 areas) with only 1/3 support in Congress.