National emergency – USA Gov Policy

This article was prepared by the distinguished retired judge, John H. Wilson.

Though there have certainly been questions raised by the declaration of a National Emergency by past Presidents, there has never been the firestorm of opposition that came with this proclamation. In an article published before the declaration was made, Yale Law Professor Bruce Ackerman asserted that President Trump, and any troops working under his direction, would be committing a federal crime if the president diverted “funds from the military budget to pay for a wall, and to use military personnel to build it.”

The Professor’s position was based on the general prohibition from using the military to enforce domestic law, however, his opinion was written prior to the issuance of the actual proclamation, which provides for the use of the “Ready Reserve” (National Guard, for instance) and not the active military. Still, not having a legitimate basis to oppose the declaration of a National Emergency has not stopped anyone from making their opposition known. Congressman Adam Schiff (D-CAL) claimed that President Trump didn’t have the authority, and that the idea was a “non-starter.”

A coalition of 18 states have filed a lawsuit against President Trump to challenge the declaration of a National Emergency under these circumstances. Predictably filed by the Attorney General for California in a California federal court, the text of the complaint reads more like a political manifesto than a legal document, and ironically, the only states participating in the lawsuit that are actually on the Southern Border are California and New Mexico. The rest are the usual Trump resistors, such as New York, Illinois and New Jersey (states which also happen to have large Sanctuary Cities).

In turn, the Attorney Generals of Texas, Louisiana and Indiana have asserted that President Trump’s invocation of his power to declare a National Emergency is lawful.

Regarding the States’ legal action, as President Trump stated at his February press conference when he declared his intentions, “we will have a national emergency, and we will then be sued, and they will sue us in the Ninth Circuit, even though it shouldn’t be there, and we will possibly get a bad ruling and then we will get another bad ruling, and then we will end up in the Supreme Court, and hopefully we will get a fair shake and win in the Supreme Court.”

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Of more interest is the action taken by Congress in response to the President’s declaration. Invoking their power to terminate a National Emergency under Section 202(a)(1) of the 1976 Act, first the House, and then the Senate voted to block the proclamation. The measure passed both houses, however, the Senate vote fell short of the two-thirds majority necessary to block the President’s veto. That veto came the very next day, the first of the Trump Presidency. Congress plans to hold a vote to override the veto, but it does not appear as of this writing that there are sufficient votes to override.

Lost in the weeds of this ongoing drama between Congress, the Sanctuary City States, and the President, is the reason for the declaration of a national emergency. The facts speak for themselves; In 2018, the US Citizenship and Immigration Service received approximately 106,000 new asylum requests from those admitted legally, compared to only 25,500 in 2008; and Immigration courts received approximately 160,000 asylum requests in 2018, compared to only 42,000 in 2008. Further, in the last 6 months of 2018, arrests of illegal immigrants along the Southern border increased by 4,000 percent. There is no reasonable view of this evidence that will not support the declaration of a National Emergency at the US-Mexico border.

Thus, we are led back to the question with which we began. Why would the declaration of a National Emergency over a flu epidemic be greeted with support, while the mobilization of forces to halt a substantial increase in illegal migration be met with such vehement resistance?

The heart of the answer may be found not in what Emergency is being declared, but in who is exercising the power.

Photo: Supervisory Border Patrol Agent Kevin Hecht crawls through the drainage pipe looking for evidence left behind by the illegal tunnelers. (U.S. Border Patrol)

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.

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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

Russian-Belarus Preparations for an Attack on the West

While Russia is celebrating May Day at home this week, it is also growing closer to breaching the threshold triggering a nuclear event in Western Europe. Military analysts in Washington consider the recent deployment of Russian tactical nuclear weapons in Belarus a political sign designed to unnerve the North Atlantic Treaty Organization’s (NATO) easternmost flank. Alexander Taranov, of the Jamestown Foundation calls it “practical preparation for nuclear escalation.” Last week the Kremlin publicly repeated its threat of nuclear war against the West. It immediately followed the US Congress’ vote to provide $61 billion in military assistance to Ukraine. Up for debate is whether Russia’s storage of nuclear warheads in Belarus is short-term preparation for their operational use. Russian Foreign Minister Sergei Lavrov openly declared that increasing aid to Ukraine increases the threat of a direct military clash. From Moscow’s perspective, he points out, Ukraine is backed by three nuclear states, including the US, UK, and France. He uses it to justify the Kremlin’s moves in Belarus as Russia considers the situation a serious strategic risk. The nuclear environment in Europe is moving beyond simple rhetoric this spring. Russian-Belarus preparations for an attack on the West include war gaming a simulated nuclear event in Ukraine and Eastern Europe. The operating assumption for the games is that the West is “morally too weak to respond with retaliatory strikes,” according to Taranov. The representative for national defense of the Belarusian opposition-in-exile’s United Transitional Cabinet and former commander of the Belarusian 38th Separate Guards Air Assault Brigade (Brest), Valery Sahashchyk, says that the militaries are war-gaming and preparing for an attack on Lithuania. Last week the publication RIA Novosti suggested that the Kremlin may take matters into its own hands and that Russia is fighting a “long war” against the collective West and Ukraine. Just over a month ago, the Federation of American Scientists (FAS) confirmed the establishment of a nuclear warhead storage facility near Asipovichy, Belarus, where, according to Taranov, the 1405th Artillery Ammunition Base is located. The 465th Missile Brigade is almost co-located and supplied with Russian Iskander-M operational-tactical missile (RMB) systems that are also known as TNW carriers. Pre-deploying tactical nuclear weapons (TNWs) raises the potential that Russia could choose to use them should the war in Ukraine go badly this summer. Western powers are divided on how to view the Russian nuclear moves. Some military planners are arguing that the West needs to be prepared, despite the possibility that Putin is simply posturing and not preparing for war. Other Western commentators suggest it is only posturing since prior to the recent nuclear deployment in Belarus, Russia already had the capability to launch a strike in Eastern Europe using its modernized nuclear weapons storage facilities in Kaliningrad. Taranov points out that the Belarusian nuclear site is only modernized with added perimeter security and an access point and that “No underground bunker-type fortifications, designed for the long-term storage of TNWs… were built on the Belarusian base’s territory. Instead, the nuclear warheads were placed in one of the arsenals of the ammunition base, which also stores operational-tactical missiles for the Iskander-M system.” He says this co-location with their launch vehicles is an indication that a repair and maintenance base has been organized there to support and prepare the TNWs for operational use. Personnel on the site are likely tasked with fitting the nuclear warheads on the missiles. What makes this more concerning is that during a peacetime environment, the standard Russian practice is to store TNWs in a special bunker-type fortified facility while RMBs typically are located off base. Military procedures in the past called for moving TNWs off base to the TNW carrier and delivery vehicle site only after receiving an order or special command from: 1) the Supreme Commander-in-Chief, 2) the Minister of Defense, and 3) the Chief of the Russian General staff. Co-positioning marks a change in standard operating procedures that indicates the weapons are, essentially, in field-ready conditions. This reduces the time to place the nuclear warheads on the missiles. This “indicates preparation for operational use,” according to Taranov. There are additional signs that Putin is prepping for an escalation in the Ukrainian conflict. The Polish government says Russian Aerospace Forces are using Belarusian-based Kh-55 nuclear-capable cruise missiles with imitators of nuclear warheads against targets in Poland and Ukraine. This points to Russia’s practicing for at minimum of a tactical nuclear strike. The summer months may become very active in Europe if Putin sees it as an opportune time to act while the US is in the middle of a presidential election. Daria Novak served in the U.S. State Dept. Photo: RS-24 Yars (SS-27 Mod 2) ICBM. Photo: Wikimedia Commons / Vitaly V. Kuzmin