The Supreme Court will likely approve Trump's wall,
by Ronald Trowbridge, 3/20/19, The Hill.
A constant refrain we now hear is
that President Trump’s order to finance the wall is
“unconstitutional” and “violates the separation of powers.” That is not the
case. Richard H. Pildes, a professor of constitutional law at New York
University, wrote on March 14 the clarifying article, “How the Supreme Court Weakened
Congress on Emergency Declarations.” Here are his salient points:
Trump’s declaration of a national emergency to build the wall
derives from that singular authority in the National Emergencies Act (NEA),
passed by Congress in l976. Since then, presidents have resorted to the NEA 58
times. In each case, the president — Democrat and Republican — spent funds not
appropriated by Congress and the Supreme Court did not overturn the action.
Pildes notes, “Courts are uncomfortable when asked to second-guess presidential
judgments in areas such as national security, foreign affairs and emergencies.”
The courts are not experts on these matters.
Pildes cites the key Supreme Court
decision, Immigration
and Naturalization Service v. Chadha,
which declared, he says, that “legislative vetoes are unconstitutional”—
including vetoes of actions under the National Emergencies Act, the basis on
which Trump acted.
Pildes adds, “Congress cannot act
through a legislative veto but can act only by passing a new law.” But the
horse was out of the barn for Trump: he acted on the authority of the NEA. Chadha, says Pildes, “must give Trump the chance to veto
Congress’s disapproval” of his unilateral action. He issued a veto, for which,
Pildes further explains, a “two-thirds majority in each chamber [is required]
to override....” This override is not likely to happen: in the Senate, 59
members voted against Trump’s declaration of a national emergency; a two-thirds
supermajority would require 67 votes. In the House, 242 voted against Trump’s
action, a two-thirds supermajority requiring 290 votes.
Pildes says the NEA “does not define
what constitutes an emergency.” A non-definition goes to the president’s
advantage. Trump neither violated the Constitution nor violated the separation
of powers. His unilateral action was a constitutional power ceded to him by an
act of Congress (the NEA) in l976 and used by presidents on both sides of the
political aisle 58 times. President Obama, for example, used the act to
transfer funds without congressional authority to his health care act.
The final resolution now will go to the
courts, surely ending up in the Supreme Court. Now here’s the rub: we know that
members of the Supreme Court often make political rather than legal decisions.
The Court is now composed of four liberals and five conservatives. Jeffrey
Toobin, legal analyst at CNN, was on the mark when he observed, “When it comes to the core of the
Court’s work ... it is ideology, not craft or skill, that controls the outcome
of cases.”
Similarly, Richard A. Posner, the great conservative judge and law
professor, has written, “It is rarely possible to say
with a straight face of a Supreme Court decision that it was decided correctly
or incorrectly.” Constitutional cases, he added, “can be decided only on the
basis of a political judgment, and a political judgment cannot be called right
or wrong by reference to legal norms.”
If the Supreme Court acts legally rather
than politically in following the Chadha precedent, the vote could be 9-0 in
support of Trump’s unilateral authority to declare an emergency and transfer
funds to defray costs. Why do I feel somehow that the vote will be 5 to 4
Norb Leahy, Dunwoody
GA Tea Party Leader
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