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Obama Declared 13 National Emergencies — 11 Are Still Active


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Obama Declared 13 National Emergencies — 11 Are Still Active

 

 Jan 10, 2019

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There are a lot of national emergencies going on. In fact, there are 31 active national emergencies declared under the National Emergencies Act.

Bill Clinton used this authority 17 times. President Trump has only used it three times so far.

Sorry Democrats, this “national emergency” business is not quite the work of “dictators.”

Conservative Tribune reports: “Of Obama’s 11 continuing national emergencies, nine of them were focused exclusively on foreign nations, while only one seemed focused on protecting America — a declaration aimed at punishing individuals “engaging in significant malicious cyber-enabled activities.”

 

All of the rest of Obama’s national emergencies were focused on blocking property or prohibiting transactions/travel for individuals engaged in various activities in — by order of the date of enactment — Somalia, Libya, transnational criminal organizations, Yemen, Ukraine, South Sudan, Central African Republic, Venezuela and Burundi.

 

Conservative Tribune passage ends

The American people stand with President Trump following his amazing Oval Office address explaining the human cost of illegal immigration.

 

If President Donald Trump uses the U.S. military to build the border wall along the United States’ international with Mexico by declaring a national emergency, won’t liberals simply run to a Federal judge whom they believe to be left-wing within the Ninth Circuit and block Trump? Can Congress vote to overturn Trump’s declaration of an emergency?

No. If the federal courts actually follow the law, President Trump cannot be prevented from “reprogramming” funds appropriated for the U.S. Department of Defense and actually using the military (such as the U.S. Army Corps of Engineers) to build the border wall.

 

As noted in the first installment on this topic, Congress has given a president the power to declare a national emergency by 50 U.S.C. 1621 and  50 U.S.C. 1622.  A declaration of an emergency allows the President to reprogram funds in the military budget.  See 33 U.S. Code § 2293 “Reprogramming during national emergencies.”

Trump could reprogram funds from other parts of the Department of Defense budget — including from other DoD construction projects such as on bases, military housing, etc. — and engage in construction in areas of need for the national defense.  The statute says that explicitly (although statutes are never easy reading).

But Democrats are threatening and commentators are warning that such an action would be challenged in court and in Congress immediately.  Can such a plan be blocked?

First, 50 U.S.C. §1622 allows the Congress to over-turn a president’s declaration of an emergency.  If both the Senate and the House each pass s resolution terminating the President’s declaration of an emergency, than the emergency status terminates under 50 U.S.C. §1622.  But clearly the Republican-controlled U.S. Senate would not join the Democrat-controlled U.S. House of Representatives.  Unless a significant number of Republican Senators vote against a border wall built by the U.S. Army Corps of Engineers or contractors with military funds, Congress could not block Trump’s efforts.

(Note, although I argue in the next section that this power has been invalidated by the U.S. Supreme Court, if a court disagrees on that, a legislative veto power should block a lawsuit.  Where Congress has provided a specific method for challenging a declaration of an emergency, the federal courts would normally hold that that method becomes the exclusive remedy.  A lawsuit would be blocked by the fact that Congress provided a non-litigation remedy.)

 

Second, however, the Congressional veto process described above has been ruled unconstitutional by the U.S. Supreme Court, in INS v. Chadha, 462 U.S. 919 (1983), finding a legislative veto of Executive Branch action unconstitutional.  Congress passed many laws which specifically enabled Congress to veto regulations or actions under that law.  The U.S. Supreme Court found a legislative veto violates the structure or architecture of the Constitutional system.

Laws go to the President for signature or veto.  Congress cannot reach over and pull a law back.  Congress must pass a new law and present it to the President for signature if dissatisfied with how the law is working out.  The U.S. Supreme Court had no hesitation finding that the Congress had over-reached, based only on the implied architecture of the Constitution.

In Chadha50 U.S.C. 1622 was one of the laws explicitly discussed.  The dissenting opinion specifically warned that the Chadha decision invalidated Congress’s ability to overturn a presidential declaration of a national emergency.

Therefore, Congress cannot overturn a declaration by President Trump that the open border is a national emergency.  Even if the U.S. Senate were to side with the Democrats, Chadha explicitly ruled the Congressional veto (termination) of a presidential declaration to be an unconstitutional distortion of the familiar “Schoolhouse Rock” means by which laws are passed and signed by presidents.  Once a law is signed, there is no “claw back” right by Congress.

Third, of course, critics are discussing whether Trump’s actions would be constitutional.  Here, however, Congress passed a specific statute, in fact a series of statutes.  So there is no question about the President’s power to do what the Congressional statute has explicitly empowered him to do.

 

Some even point to a rather famous Constitutional landmark case — Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) — in which the U.S. Supreme Court explicitly ruled that President Dwight D. Eisenhower did not have the power to temporarily nationalize the U.S. steel industry to avert a strike for national defense.  However, Youngstown was not that simple.  Youngstown analyzed the inherent powers of Commander in Chief as modified by Congressional agreement by statute.

The U.S. Supreme Court explicitly analyzed that the President’s powers are at their greatest (zenith) when he acts not only by his inherent powers as President but also by the agreement of a statute passed by Congress.  In Youngstown, Eisenhower did not have any statute supporting his action and the Court reasoned that he was actually acting in conflict with relevant statutes.

Here, the Congress has already enacted and President George W. Bush signed into law, the Secure Fence Act of 2006.  It is already the law of the land that a border wall shall be built along the United States’ Southern border.  Neither Congress nor any private plaintiff can challenge the official determination that a border wall or barrier shall built.  That is the law.  That is the official determination of both the U.S. Congress and the Commander in Chief.

The Secure Fence Act of 2006 was never implemented (other than a few miles) because Congress did not appropriate the funds to pay for it.  There are two steps:  Authorization and Appropriation of funds.  The decision to build a border wall is final.  The only question is applying funds to make it happen.

Building of a border wall under the 2006 Act was also not completed because the Swamp and Deep State sabotaged it.  Using classic bureaucratic games, the bureaucracy and open borders legislators followed “designed to fail” steps that ground the construction to a halt.

Note that in spite of the word “fence” in the title, the law does not actually mandate a “fence” in particular.  The wording of the Act is not about a “fence” but about any kind of barrier customized to the particular terrain in each location to the extent necessary to “the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.”   That is “all.”  As in “all.”

So the Secure Fence Act of 2006 requires building “whatever it takes” — not a “fence” per se.  The Act does require specific enhanced barriers and lights, cameras, and sensors, in some named locations.

Fourth, could liberals run to the courts to block Trump from using the military to build a border wall?  No.  Only those with “standing” can bring a lawsuit.  How is anyone harmed?

The federal courts have been waging Jihad against citizens bringing lawsuits for decades.  The federal courts have been raising the bar higher and higher to make it nearly impossible for anyone to challenge the actions of government agencies or public officials.  Specifically a complaint that is shared generally by much of the population cannot establish standing.

Contrary to strongly-held popular belief, the U.S. Supreme Court has clearly ruled that taxpayers do not have standing to challenge government spending, revenue, or action merely because they are taxpayers.  See, Daimlerchrysler Corp. v. Cuno, 126 S.Ct. 1854, 164 L.Ed.2d 589, 547 U.S. 332 (2006).  So the Left cannot block Trump’s plans by suing as taxpayers.  (The only exceptions involve use of funds to establish a religion or local government taxpayers.)

Similarly, Members of Congress do not have standing either.  Certainly individual Members of Congress do not.  See Raines v. Byrd, 521 U.S. 811 (1997).

To bring a lawsuit, one must show that they are tangibly harmed, personally, not just in disagreement with a policy.  If Trump uses some of the $700 billion in the omnibus bill to build a border wall, everyone will be more safe.  How is anyone harmed?

Fifth, can private landowners, some of whom will be liberals, go to court and stop the use of private land as an easement taken by eminent domain?  No.

There is absolutely no defense available to taking land by eminent domain.  How much compensation is owed for taking an easement as a strip of land could take years to fight out in court.  But the actual right to use the land cannot be contested.  The government can take an easement immediately and then fight later over how much money should be paid to the landowner.  Remember that this was the legal holding of the over-the-top, controversial U.S. Supreme Court precedent Kelo v. City of New London, Connecticut, 545 U.S. 469, 125 S. Ct. 2655; 162 L. Ed. 2d 439 (2005).  (Kelo ruled that it is not even necessary to show a “public purpose” for eminent domain, which goes too far.)

Legal challenges will not stop construction, even it takes years to reach agreement on the compensation payable to landowners.   To finance payment of compensation, Trump should consider offering a land swap of federally-owned tracts of land or selling such public lands.

Sixth, opponents of Trump’s agenda will try to find individual landowners along the border, who might be liberal, to object in general to the reprogramming of military funds to build the border wall.  But those landowners should not be considered to have standing, for several reasons:

(A)  It would be speculation as to whether the government will take any action at their particular section of the border.  How would a landowner know that his or her part of the border is a stretch where the planners believe an actual wall is truly needed, as opposed to other natural or physical barriers?  It would be — under standard doctrines of standing — insufficient to speculate that that particular landowner’s land is going to be affected at all.

(B)  There is a concept called “exhaustion of administrative remedies.”  If an individual landowner doesn’t want a border fence along their particular stretch of the border, they would first have to tell the government that they object.  The courts would traditionally wait until the government can try to find agreement with the landowner before allowing a lawsuit.  A lawsuit would be invalid as not yet being “ripe.”  Traditionally the courts would require a plaintiff to actually talk to the government agency first to see if their stretch of land is actually going to be affected or not, whether a compromise can be worked out, etc.  Those are the currently-existing standard rules that always govern. (In fact, on policy, one could argue if a landowner doesn’t want a wall along their property, fine. Let all the trespassers funnel through that person’s land, trampling the ground, leaving trash everywhere, and frightening their family in their home at all hours.  If they don’t want a border wall on their property, fine.  Check back with us later and tell us how that worked out for you.)

Seventh, open border advocates of course will also find some would-be gate-crashers from another country to say that they want to break the law and cross the border in the unmanned frontier and the border wall will stop them from breaking the law.  That should be laughed out of court, because one does not have a “right” to break the law.  Similarly, they will try to find immigrants in the U.S. who want to bring family members into the U.S.A.  But they have legal avenues for doing that, by sponsoring their family members to come in legally.  Those ideas may impress an individual federal trial judge for a short time, but it should not survive on appeal.

(Note:  Trump does need to get changes in the law through Congress or perhaps just issue clarifying regulations from DHS that a foreigner can apply for asylum at a U.S. consulate without entering the United States.)

As an attorney in Virginia for 21 years, who has worked for both Judicial Watch and more recently Freedom Watch created by Larry Klayman, I often have to explain the concept of “standing” to clients who want to bring “good government” lawsuits or hold the government accountable to its rules.

When Sheriff Joe Arpaio sued to challenge Barack Obama’s amnesty by executive order, the U.S. Court of Appeals for the District of Columbia ruled that Arpaio did not have standing, even though illegal immigration cost him actual money in (then) running the jails of Maricopa County.  I worked on that legal case, from helping write the original complaint (with an eye toward establishing standing from word one) to legal memoranda in the U.S. District Court for the District of Columbia, filed by Larry Klayman, to the appeal by Larry Klayman to the U.S. Court of Appeals for the District of Columbia.  Arpaio’s legal pleadings established standing as strong as one could imagine, an iron lock on showing standing.

Didn’t matter.  The courts completely contradicted other precedents, as powerfully demonstrated by the dissenting opinion of the Honorable Janice Rogers Brown, an African-American appeals judge with more intellect and intellectual integrity in her little finger than the U.S. Congress combined.

In deadly seriousness and a straight face, I honestly have to explain the law of standing in federal courts as follows:  If you want to encourage the expansion of government and government intervention in the economy or society or prevent the streamlining of government, you have standing.  If you want to hold government accountable to staying within its rules or you want to block left-wing policies, you don’t have standing.  it’s pretty much that simple.  Are you a liberal?  You have standing.  Are you a conservative?  You don’t have standing.  Having studied hundreds of precedents on standing, I must say that with absolutely no humor, exaggeration or hyperbole.  I could not truthfully say anything different.

However, the federal courts have established some very strong precedents ruling that almost no one has standing to challenge anything that the government wants to do — unless the government action directly  harms the plaintiff personally and individually.

Therefore, it will be extremely awkward for the federal courts to ignore and contradict their past precedents and claim that anyone has standing to object to the building of a border wall by the U.S military.

Finally, President Trump’s Administration under incoming Attorney General William Barr has got to stop this foolishness with lawsuits brought before a cherry-picked judge in the Ninth Circuit whom the plaintiffs believe will be unusually sympathetic to them and hostile to Trump’s policies.

The Department of Justice under Bill Barr must always   file a motion for a change of venue to the U.S. District Court for the District of Columbia.  Readers will be familiar with changes of venue requests in famous criminal cases.  But this is different.   This is not about whether a criminal defendant can get a fair trial due to pre-trial publicity.

A change of venue in a civil dispute is based upon other considerations:  Where are all the witnesses?  Where are the records and evidence kept?  Where was the decision made?  Where are the decision-makers to be affected by the lawsuit located?  Those venue rules strongly if not conclusively favor moving any such lawsuit to the District of Columbia, where the decisions were made, where the officials and witnesses reside, and where all the evidence is located.

Again, those are the standard, currently-existing, non-controversial rules.  None of these lawsuits should be tolerated out in the Ninth Circuit on the Left Coast.  There is no valid reason to have such lawsuits spread around the country instead of being held in Washington, D.C., where the action is — and where the action took place.

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Here's a list of the 31 national emergencies that have been in effect for years

  • By KENDALL HEATH
Jan 10, 2019, 6:58 PM ET
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According to the Federal Register, 58 national emergencies have been declared since the National Emergency Act of 1976 was signed into law by President Gerald Ford.

And 31 have been annually renewed and are currently still in effect, as listed in the Federal Register.

Here's a list of the presidents who declared still ongoing national emergencies.

 

President Jimmy Carter

 

PHOTO: Former President Jimmy Carter speaks as Democratic gubernatorial candidate Stacey Abrams listens on during a news conference to announce her rural health care plan in Plains, Ga., Sept. 18, 2018.John Bazemore/AP, FILE
Former President Jimmy Carter speaks as Democratic gubernatorial candidate Stacey Abrams listens on during a news conference to announce her rural health care plan in Plains, Ga., Sept. 18, 2018.more +

 

Nov 14, 1979: The National Emergency With Respect to Iran, in response to the Iran hostage crisis.

 

President Bill Clinton

 

PHOTO: President Bill Clinton walks out to make a statement to the media in the Rose Garden at the White House on Feb. 12, 1999.AFP/Getty Images, FILE
President Bill Clinton walks out to make a statement to the media in the Rose Garden at the White House on Feb. 12, 1999.more +

 

Nov 14, 1994: The National Emergency With Respect to the Proliferation of Weapons of Mass Destruction, that combined two previous national emergencies focused on weapons of mass destruction.

Jan. 2, 1995: The National Emergency With Respect to Prohibiting Transactions with Terrorists Who Threaten to Disrupt the Middle East Peace Process placed economic sanctions in response to the Jerusalem bombing.

March 15, 1995: The National Emergency With Respect to Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum Resources was an effort to prevent potential deals between oil companies.

October 21, 1995: The National Emergency With Respect to Blocking Assets and Prohibiting Transactions with Significant Narcotics Traffickers Centered in Colombia was declared after increased reports of drug cartels laundering money through American companies.

March 1, 1996: The National Emergency With Respect to Regulations of the Anchorage and Movement of Vessels with Respect to Cuba was after civilian planes were shot down near Cuba

November 3, 1997: The National Emergency With Respect to Blocking Sudanese Government Property and Prohibiting Transactions with Sudan implemented economic and trade sanctions.

 

President George W. Bush

 

PHOTO: President George W. Bush addresses the nation aboard the nuclear aircraft carrier USS Abraham Lincoln as it sails for Naval Air Station North Island, San Diego, Calif.Stephen Jaffe/AFP/Getty Images, FILE
President George W. Bush addresses the nation aboard the nuclear aircraft carrier USS Abraham Lincoln as it sails for Naval Air Station North Island, San Diego, Calif.more +

 

June 26, 2001: The National Emergency With Respect to Blocking Property of Persons Who Threaten International Stabilization Efforts in the Western Balkans imposed sanctions on those aiding Albanian insurgents in Macedonia

Aug 17, 2001: The National Emergency With Respect to Export Control Regulations renewed presidential power to control exports in a national emergency since the Export Administration Act of 1979 lapsed.

Sept 14, 2001: The National Emergency with Respect to Certain Terrorist Attacks was in response to the terrorist attacks of 9/11 and the continuing and immediate threat of further attacks on the United States.

Sept 23, 2001: The National Emergency With Respect to Persons who Commit, Threaten to Commit, or support Terrorism was in response to the terrorist attacks of 9/11.

March 6, 2003: The National Emergency With Respect to Blocking Property of Persons Undermining Democratic Processes or Institutions in Zimbabwe was an effort to punish associates of Robert Mugabe.

May 22, 2003: The National Emergency With Respect to Protecting the Development Fund for Iraq and Certain Other Property in Which Iraq has an Interest was issued following the U.S. invasion of Iraq.

May 11, 2004: The National Emergency With Respect to Blocking Property of Certain Persons and Prohibiting the Export of Certain Goods to Syria was in response to Syria supporting terrorist activity in Iraq.

June 16, 2006: The National Emergency With Respect to Blocking Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus was in response to charges of fraud in the Belarus presidential election.

Oct 27, 2006: The National Emergency With Respect to Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo was in response to violence around the Congolese presidential election runoff.

Aug 1, 2007: The National Emergency With Respect to Blocking Property of Persons Undermining the Sovereignty of Lebanon was in response to a breakdown of the rule of law in Lebanon.

June 26, 2008: The National Emergency With Respect to Continuing Certain Restrictions with Respect to North Korea cited the risk of proliferation of weapons-usable fissile material. President Trump renewed this June 22, 2018 citing the “existence and risk of proliferation of weapons-usable fissile material on the Korean Peninsula and the actions and policies of the Government of North Korea continue to pose an unusual and extraordinary threat.”

 

President Barack Obama

 

PHOTO: President Barack Obama signs the Every Student Succeeds Act, Dec. 10, 2015, in Washington, DC.NurPhoto via Getty Images
President Barack Obama signs the Every Student Succeeds Act, Dec. 10, 2015, in Washington, DC.more +

 

April 12, 2010: The National Emergency With Respect to Blocking Property of Certain Persons Contributing to the Conflict in Somalia was in respect to threats posed by Somali pirates.

February 25, 2011: The National Emergency With Respect to Blocking Property and Prohibiting Certain Transactions Related to Libya froze the assets of Libyan leader Muammar Gaddafi.

July 25, 2011: The National Emergency With Respect to Blocking Property of Transnational Criminals was in response to the rise in crime by specific organizations: Los Zetas (Mexico), The Brothers’ Circle (former Soviet Union countries), the Yakuza (Japan), and the Camorra (Italy).

May 16, 2012: The National Emergency With Respect to Blocking Property of Persons Threatening the Peace, Security, or Stability of Yemen addressed political unrest within the Yemen government.

March 16, 2014: The National Emergency With Respect to Blocking Property of Certain Persons Contributing to the Situation in Ukraine was in response to the Russian invasion of Crimea.

April 3, 2014: The National Emergency With Respect to Blocking Property of Certain Persons With Respect to South Sudan was in response to the ongoing civil war.

May 12, 2014: The National Emergency With Respect to Blocking Property of Certain Persons Contributing to the Conflict in the Central African Republic was in response to violence towards humanitarian aid workers.

March 8, 2015: The National Emergency With Respect to Blocking Property and Suspending Entry of Certain Persons Contributing to the Situation in Venezuela was in response to human rights violations.

April 1, 2015: The National Emergency With Respect to Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities was in response to Chinese cyber attacks on the U.S.

Nov 23, 2015: The National Emergency With Respect to Blocking Property of Certain Persons Contributing to the Situation in Burundi was declared after a failed coup.

 

President Donald Trump

 

PHOTO: President Donald Trump speaks from the Oval Office of the White House as he gives a prime-time address about border security, Jan. 8, 2018, in Washington.Carlos Barria/AP
President Donald Trump speaks from the Oval Office of the White House as he gives a prime-time address about border security, Jan. 8, 2018, in Washington.more +

 

Dec 20, 2017: The National Emergency With Respect to Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption imposed sanctions on the Myanmar general for his role persecuting Rohingya Muslims.

Sept 12, 2018: The National Emergency With Respect to Imposing Certain Sanctions in the Event of Foreign Interference in a United States Election attempted to prevent any meddling with the 2018 midterm elections amid the ongoing investigation into Russian interference in the 2016 presidential election.

Nov 27, 2018: The National Emergency With Respect to Blocking Property of Certain Persons Contributing to the Situation in Nicaragua was declared by President Trump in response to violence and the Ortega regime’s “systematic dismantling and undermining of democratic institutions and the rule of law” that constitutes an “unusual and extraordinary threat to the national security and foreign policy of the United States.”

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Thanks Yota....this explanation was on my to do list today.....Carter got this ball rolling in 79 in regards to Iran....vaguely written....all kinds of presentense has been set that would legally allow Trump to make this declaration......the MSM and left can cry foul all they want....totally legal and permissible......CL 

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12 minutes ago, bostonangler said:

Even logical Republicans are against the national emergency idea, because they know the next democrat president will be able to do the same thing for climate change... This idea is not good for anyone...

One person should not have such power... We are not a kingdom.

 

B/A

These emergency declarations are nothing new....many over the past 40 years......for reasons less reasonable than US border security......and none ever challenged by a court.....or Congress & the Senate......with both of those requiring a 75% agreement to over turn.......if you take the sum of the drugs coming across the border.....the huge sums of US tax payer $$$ being spent on these illegals and the large amount of crime involved it is a no brainer that something needs to be done....Clinton, both Bushes and Obama acknowledged the problem and they were going to fix it.....HRC...Pelosi a d Schumer said the same......so now Trump is going to fix it.....the problem can be seen by anyone using some common sense........yet all these do nothing ash wipes want to oppose him.......makes you proud to be an American......Right?.......CL

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4 minutes ago, coorslite21 said:

These emergency declarations are nothing new....many over the past 40 years......for reasons less reasonable than US border security......and none ever challenged by a court.....or Congress & the Senate......with both of those requiring a 75% agreement to over turn.......if you take the sum of the drugs coming across the border.....the huge sums of US tax payer $$$ being spent on these illegals and the large amount of crime involved it is a no brainer that something needs to be done....Clinton, both Bushes and Obama acknowledged the problem and they were going to fix it.....HRC...Pelosi a d Schumer said the same......so now Trump is going to fix it.....the problem can be seen by anyone using some common sense........yet all these do nothing ash wipes want to oppose him.......makes you proud to be an American......Right?.......CL

 

CL I really don't believe most people including politicians are against security. The real issue is the best method. Experts (not politicians or even us regular folks) but security experts agree, a mid-evil defense system isn't the best solution... So who should we believe anyone in D.C. or people who are in the business of security? If you are building a house do you take the word of your emotional and unexperienced uncle, or do hire an expert contractor?

See that's the problem we are facing. Donald Trump or Nancy Pelosi are not security experts... They are simply working on people's emotions... That's what politicians do. And from the banter on this site, they are succeeding and we are losing... They ride the big horse and we follow behind picking up the manure... This whole wall thing is really stupid, and I think in a short time people are going to tire of it... Then they will have something new to divide us... I'm just waiting for the day they tell us the aliens or Nibiru is here and we are all doomed unless we do what they tell us.

It's like the preacher Oral Roberts once told his flock if he didn't get 4 million dollars that month, God was going to take him. I laughed and thought good for you isn't that what we all want, I don't know if he ever got the money. That was a sham, just like this is a sham. But it is a good read.

https://newsok.com/article/2171271/oral-roberts-pleads-for-money-to-help-him-live-past-march

 

B/A

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I don' believe anyone  is preaching a wall only... solves the problem.....3 walls that work/ed....along with man power and technology.....Berlin Wall........Barrier between the Korea's.......The White House.....The concept is to keep your side safe from others.......Walls, barriers.....fences.....call the concept any thing you want....if you ever get a chance....check out the great wall of China.....same concept as the wheel......old, but effective....

CL

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