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Trump Isn’t Just Violating the Constitution With His National Emergency. He’s Undermining SCOTUS.

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15.02.2019

In a Rose Garden speech Friday morning announcing that he was declaring a national state of emergency to respond to an “invasion” at the southern border, the president invoked his usual fondue of imaginary statistics (“I get my numbers from a lot of sources”) that are belied by the numbers from his own Justice Department and most experts to conjure a crisis. He cited as statistical authority the strongly held feelings of some people—Angel Moms and the “crowd in El Paso”—who assure him that Wall makes them safer than Not Wall. He was also exquisitely clear on what should be a material legal point: that this is not, in fact, a national emergency: “I didn’t need to do this … I just want to get it done faster, that’s all.” This, after months of inaction and years of a Republican-controlled Congress and a 10 a.m. announcement time that became a 10:37 a.m. announcement time that will be followed by 4 p.m.
departure for a golf weekend at Mar-a-Lago.

Legal scholars have done superb work laying out the complicated interplay between the National Emergencies Act of 1976 and the 1952 Supreme Court ruling in Youngstown Sheet & Tube Co. v. Sawyer. Justice Jackson, writing in a landmark concurrence in Youngstown, established three categories of presidential power: one in which the president acts pursuant to both his Article II authority and the authority granted by Congress; the next, a “zone of twilight” in which the president acts while Congress remains silent; and the third, which he deemed the “lowest ebb” of presidential authority, where the president acts over the objections of Congress. The Emergencies Act, however, is broad and vague. Noah Feldman says declaring an emergency when none exists is clearly unconstitutional. Elizabeth Goitein argues that the courts may give Trump the green light under the broad statutory authority of the National Emergencies Act. David French says the declaration is illegal. The truth is, of course, that what legal experts and academics think is much less relevant than what actual judges will do. And the president was absolutely clear in his announcement that he has that part in the bag.

Having conceded that he’s only declaring an emergency because he........

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