Judge Nap: Trump's Brazen Unconstitutional Overreach

[fedupinmo]

"presidents cannot act as if they were Congress any more than Congress can act as if it were the president. They cannot constitutionally exchange roles."

"by spending money not unauthorized by Congress, he has failed to uphold the Constitution."

aye.

figure out a different way to secure the border.

A: The money is already authorized by Congress, but through a continuing resolution, not a budget.
B: The feddies are required by the Constitution to protect the states from invasion, and no one single branch is charged with this duty.
If Congress passed an actual budget, the prez would be bound to spend the money where they put it. As they didn't, he has considerably more leeway in spreading it around.

 

[Superfluous Man]

Congress granted him the money when they passed the emergency law.

Can you provide us with a link to this law where we can see that your characterization of it is accurate?

 

[Brian4Liberty]

seems like he really means the law authorizing the president appropriation authority for national emergencies is unconstitutional. If so I would expect the courts to rule the entire law unconstitutional instead of just enjoining Trumps use of it, but we know that won't be the case in the LOONY 9th circuit. Where's Pelosi and her resolution of disapproval??? Is she delaying it because of the court case? If she passes it in the house and it fails in the senate, that would require the courts to consider that congress is not silent on this, and by not passing the disapproval means they approve.

That’s what I was thinking. It is strange for Judge Nap to exclude that law from his discussion of the issue.

 

[Brian4Liberty]

That’s what I was thinking. It is strange for Judge Nap to exclude that law from his discussion of the issue.

Specifically:

The National Emergencies Act (NEA) (Pub.L. 94–412, 90 Stat. 1255, enacted September 14, 1976, codified at 50 U.S.C. § 1601–1651) is a United States federal law passed to end all previous national emergencies and to formalize the emergency powers of the President.
...
https://en.m.wikipedia.org/wiki/National_Emergencies_Act

 

[Superfluous Man]

Specifically:

I can't find anything in 50 U.S.C. § 1601–1651 that undermines what Nap said in the OP. Can you?

Spudea may be right that the entire National Emergency Act is unconstitutional, and ought to be found as such by the Supreme Court, if Trump's recent declaration of a national emergency gets challenged.

But that said, as far as I can tell, Trump's national emergency declaration is an unprecedented application of that act in precisely the respect that Napolitano writes about.

The key paragraphs I see as these:

When the president acts pursuant to authority granted to him by the Congress in an area of government delegated to him by the Constitution, his authority is at its peak, and he is free to exercise it as he sees fit. When he acts in an area as to which the Congress has been silent, he acts in a twilight zone and can succeed only if the area of his behavior is delegated to him under the Constitution and if he enjoys broad public support.

But when the president acts in an area that the Constitution gives exclusively to Congress — such as spending money — and when he acts in defiance of Congress, his acts are unconstitutional and are to be enjoined.

It may be that the National Emergency Act does unconstitutionally legalize that kind of defiance of Congress in spending money, and it just happens to be that no president until now has put it to the test on that. But it may also be that it doesn't, and Trump's action really is authorized by neither the Constitution nor that law.

 

[johnwk]

"presidents cannot act as if they were Congress any more than Congress can act as if it were the president. They cannot constitutionally exchange roles."

"by spending money not unauthorized by Congress, he has failed to uphold the Constitution."

aye.

figure out a different way to secure the border.

Oh, but under the National Emergencies Act of 1976 Congress authorized the president to have access to certain funds allocated by Congress. Judge Nap cannot defend his opinion when reading the Act.. The only legitimate question is, does the ongoing invasion of our southern border rise to an emergency status? The check on this delegated power is Congress voting to deny an emergency exists.


Keep in mind order patrol agents apprehended more than 100,000 people trying to enter the country illegally in just October and November of last year. LINK


By the way see: 10 U.S. Code 2808 and 33 U.S. Code 2293 with regard to the President using available funds.



JWK

There is no surer way to weaken, subdue, demoralize and then conquer a prosperous and freedom loving people than by allowing and encouraging the poverty stricken, poorly educated, low-skilled, criminal and diseased populations of other countries to invade that country, and make the country’s existing citizens tax-slaves to support the economic needs of such invaders.

 

[Superfluous Man]

Oh, but under the National Emergencies Act of 1976 Congress authorized the president to have access to certain funds allocated by Congress. Judge Nap cannot defend his opinion when reading the Act.

Can you please quote the part of the act you're talking about that if Judge Nap read it he would not be able to defend his opinion?

 

[Sonny Tufts]

It'll be interesting to see how the courts treat Trump's admission that "I didn't have to do this", which undercuts his claim that there's an emergency.

 

[Brian4Liberty]

Can you please quote the part of the act you're talking about that if Judge Nap read it he would not be able to defend his opinion?

As this has been debated endlessly in the past few weeks, the Emergency Powers Act has been front and center in the debate. Judge Nap should have addressed it. That is the point. It comes off as deceptive to omit that at this point.

 

[Brian4Liberty]

I can't find anything in 50 U.S.C. § 1601–1651 that undermines what Nap said in the OP. Can you?

Spudea may be right that the entire National Emergency Act is unconstitutional, and ought to be found as such by the Supreme Court, if Trump's recent declaration of a national emergency gets challenged.

But that said, as far as I can tell, Trump's national emergency declaration is an unprecedented application of that act in precisely the respect that Napolitano writes about.

The key paragraphs I see as these:


It may be that the National Emergency Act does unconstitutionally legalize that kind of defiance of Congress in spending money, and it just happens to be that no president until now has put it to the test on that. But it may also be that it doesn't, and Trump's action really is authorized by neither the Constitution nor that law.

I am not going to read the act. My opinion on this has not changed since Trump first declared it.

I’m sure I’ve missed all kinds of stimulating debate on the subject, but these “National Emergencies” declared by the President should be unconstitutional. When we have these edicts outstanding for decades, they are not emergencies in any sense of the word. They are policy with the weight of law. True emergencies should be like war, with a declaration from Congress.

If this goes to the Supreme Court, the best outcome would be to rule the entire concept unconstitutional, and declare all outstanding POTUS declared “national emergencies” null and void.

How much leeway the executive branch has to move around funds and fulfill it’s duty as the executive branch may be debatable, but this “emergency declaration” power should definitely lie with Congress, not the POTUS.

 

[Superfluous Man]

I am not going to read the act.

I have noticed that this has been a running theme for those defending Trump's order.

 

[Brian4Liberty]

I have noticed that this has been a running theme for those defending Trump's order.

You read the entire and act and tell me why you think it’s Constitutional.

I would rather hear Judge Nap discuss it, but he dodged it.

 

[Superfluous Man]

You read the entire and act and tell me why you think it’s Constitutional.

I would rather hear Judge Nap discuss it, but he dodged it.

That would be a good thing for him to discuss some time. I'd be curious to see if he thinks the National Emergency Act itself is unconstitutional.

But whether the entire National Emergency Act is unconstitutional is a separate question from the one he's addressing in the article in the OP, which is the constitutionality of Trump's use of a declaration of a national emergency to spend money in defiance of Congress.

Since the National Emergency Act was passed, a lot of presidents have declared emergencies. But I don't think a single one of those has been anything like Trump's in this respect. So the two questions are not the same. Even if the National Emergency Act is constitutional, that wouldn't make Trump's action constitutional.

It may be that precedent prior to the passage of the National Emergency Act, such as the case Judge Nap discusses in that article, which dates from a time that presidents had even more leeway in their use of emergency powers than they have had since the passage of that act, circumscribes the president's powers enough for Nap to make his point without mentioning differences between the more limited emergency powers presidents have now and the more expansive ones they had back then.

 

[Schifference]

The problem with having congress decide emergencies is that they are too partisan these days or I should say the left is too partisan. Congress acts like children. I know you are but what am I. Na Na Na Na Na Na..... Nothing can get done when people in power are hypocrites. One day when this person is president xyz is very important. The next day when a different person is president xyz is not an issue.

 

[johnwk]

Can you please quote the part of the act you're talking about that if Judge Nap read it he would not be able to defend his opinion?

I'm referring to this: "Judge Nap: Trump's Brazen Unconstitutional Overreach"



I see no "overreach". Do you? If so, specify. Judge Nap likes to make crap up about our Constitution, just as he did with lying that a child born to an illegal alien while on America soil is bestowed citizenship by the terms of the 14th Amendment.


JWK

 

[johnwk]

Can you please quote the part of the act you're talking about that if Judge Nap read it he would not be able to defend his opinion?

See: 10 U.S. Code 2808 and 33 U.S. Code 2293 with regard to the President using available funds.

JWK

 

[dannno]

That’s what I was thinking. It is strange for Judge Nap to exclude that law from his discussion of the issue.

The Judge has just been going on tv making shit up for the last year and a half since he became buddies with Trump and they decided he needed to oppose Trump in the news so he could nominate him for Supreme Court later.

It's been pretty obvious, I've never seen him make these kind of gaffs before.. just started happening one day, and it's been consistent since then.

Hopefully he replaces RBG soon.

 

[Superfluous Man]

I see no "overreach". Do you? If so, specify.

Absolutely. I see precisely the same overreach that Judge Nap explains in the OP. It would be one thing if Trump were allocating money toward something Congress had not voted on. But when he just finished a lengthy period of negotiating with Congress to get money for something he wants, and they refused to give him as much as he wants for it, and then he resorts to declaring a national emergency as a means of taking that money from somewhere else in defiance of Congress, that undermine's Congress's power over the purse.

 

[Superfluous Man]

See: 10 U.S. Code 2808 and 33 U.S. Code 2293 with regard to the President using available funds.

JWK

Both of those codes specifically stipulate that the president's authority to authorize those uses of funds is limited to national emergencies that require the use of the Armed Forces. Building a border wall plainly does not require the use of the Armed Forces. The only reason Trump is going about it this way is because that's the only way to shoe-horn it into something covered by the laws you cite.

But even more importantly, nothing in either of those codes contradicts the point Judge Nap argues in the OP. The uses of funds pursuant to those codes must still be subject to constitutional limitations. As Nap says:

When the president acts pursuant to authority granted to him by the Congress in an area of government delegated to him by the Constitution, his authority is at its peak, and he is free to exercise it as he sees fit. When he acts in an area as to which the Congress has been silent, he acts in a twilight zone and can succeed only if the area of his behavior is delegated to him under the Constitution and if he enjoys broad public support.

But when the president acts in an area that the Constitution gives exclusively to Congress — such as spending money — and when he acts in defiance of Congress, his acts are unconstitutional and are to be enjoined.

 

[acptulsa]

Is that legally and constitutionally possible?

Sure. It's just not physically possible.

It is an appropriation made by law.

That's funny. Good job.

Of course, if you were serious about Congress appropriating 1976 dollars to 2019 projects without actually setting any FRNs aside at all (because who can set aside something that won't be created for forty years?) then calling such an act an appropriation would be so fucking stupid that it would be sad. It would be pitiful. It wouldn't be funny at all. It would be the sort of thing only a possum-level-intellect submoron could say.

But we all know you were joking. Good one.