Does Trump Really have the Power to Declare a National Emergency and Use That Emergency to Have the Military Build The Wall? Part I In my previous post I argued why I believed Trump will never declare a national emergency to Build The Wall.  Trump says he doesn't make threats, but the N.E. claim is one, a tactical maneuver that will make him look like a restrained leader and the media look deranged. The real issues are The Wall and making Democrats look bad. The N.E. threat has the media whining that such a declaration is an impeachable abuse of power,and that he is a tyrant who doesn't know the Constitution.  Watch him never use this power. He will demonstrate his judicious respect for the restrained use of executive power (even those he has it). But notice the irony. Trump has already declared a very significant national emergency in Executive Order 13818, “Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption,” regarding the blocking/confiscation of funds of those, world-wide, involved in corruption and human trafficking.  Do you remember the prime time address regarding that national emergency and the media brewha over it? Exactly, it didn't happen and thus, the MSM almost totally ignored it and has entirely ignored its massive implications. In fact CNN reported as of April, 2017 there were 27 active national emergencies in effect.... On Jan 9, 2019 the Pacific Standard reported that there have been 58 national emergencies declared by presidents since 1979 and that 31 states of emergency are still currently in effect under President Trump. Did you know that?  In fact in September 2017, Trump became the third president to renew extraordinary post-9/11 emergency powers with Proclamation 7463. What precisely is a 'national emergency'? Well it turns out that legally, the definition is both intentionally broad and vague in order to provide the Executive with flexibility to meet any and all security needs, including circumstances unforeseen by law. The problem is laws are general and blind, they cannot foreseen and account for future circumstances. A "national emergency is a national crisis or a situation where circumstances threaten the country and call for an immediate response." The NEA says "the words 'any national emergency in effect" means a general declaration of emergency made by the President'." Is that clear enough for you? The criteria for a national emergency is when the president so.  Given the foremost object of the Executive Branch, the security of the American people, this decision  is almost entirely left to the discretion of the president.  The president both decides and declares when the emergency exists.  Technically the criteria and procedures for declaring a National Emergency are circumscribed by the National Emergencies Act of 1976, signed by President Ford, Sept. 14, 1976. The declaration of a national emergency gives a president profound powers. For example, “by proclaiming a national emergency the president “activated some 500 dormant legal provisions, including those allowing him to impose censorship and martial law.” John Locke called this emergency authority, * prerogative* power. It allowed a king or modern executive to act “according to discretion for the publick good…where the law is silent...and sometimes even against the direct Letter of the Law.”  The state of emergency is then the state of the exception, a circumstance in which the “law has given no direction.”   Law is the domain of the Congress. The legislative branch makes the laws.  If in an emergency a president can act where the law is silent or contrary to law itself in the interest of national security then Congress has no role to play. They are excluded and power shifts dramatically to the Executive under such circumstances.  The president both decides and declares when the emergency exists. The most famous example is of course Lincoln's radical use of executive powers at the outset of the Civil War. Powers that are no where explicitly found in the Constitution. History will notice that Lincoln's suspension of Habeas Corpus was taken in April of 1861, while congress was not in session.  Given the president's responsibility for the security of the people and the nation, the Constitution was not intended as a suicide pact. If following a law will lead to the destruction of the Republic, it should be ignored.  This is precisely what Lincoln meant when he said in his July 4, 1861 message to the special session of Congress: “Are all the laws but one to go unexecuted and the government itself go to pieces lest that one be violated."  What checked Lincoln? Public opinion and the Supreme Court. But by the time the court ruled Lincoln's decisions had already been taken and its effects achieved.  Declaring a national emergency is not difficult by design because the president needs to be able to respond swiftly to rapidly developing events that are not anticipated or accounted for by existing law. He can't wait for Congress to convene or mull over the nuances of a situation. Congress is a slow working machined demanding the consent of at least half of its 535 members. Gridlock is the norm.  Congress would fiddle while Rome burns... Meanwhile the unitary nature of the executive gave it what Alexander Hamilton calls in The Federalist Papers, "energy" and "dispatch", the necessary power and speed to respond to a crisis.   This makes the office dangerous. Many thought Hamilton, a believer in a strong executive, had merely created a new monarch to replace the one we had escaped. If the National Emergencies Act of 1976 was designed to curtail the Imperial Presidency and return power to Congress, it is notable that it provides no criteria for the declaration of a national emergency. Criteria for declaration is entirely left to the whim and will of the president. "Congress expressly gave presidents the authority to declare such emergencies and act unilaterally."  The law only provides a congressional review mechanism which allows them to terminate a state of emergency, but it gives them not authority or role in the declaration of one.  This statute says that a state of emergency must be made publicly not in secret, it must go into the federal registry, and it is supposed to be subject to congressional validation/re-authorization for it to remain in effect after a certain period of time as prescribed by this law.  This law, designed to wrest power from the executive, gave Congress the power to reauthorize or terminate a state of emergency by simple majority vote. In 1983 the Supreme Court "declared this sort of [unilateral] legislative veto over presidential action unconstitutional." And, in1985 an amendment to the act "now requires a joint resolution to end the emergency, meaning that any Congressional vote to end the emergency is subject to the president’s veto, which may be overridden only by two-thirds majorities of both houses.” In 2018 the Supreme Court upheld this amendment in its  Trump v. Hawaii decision saying "If Congress did act, it would need a veto-proof majority, the remotest of possibilities." This procedure has all the appearance of the checks and balances of competing branches the Constitution was intended to create and maintain.  However, rarely has congress actually weighed in on the extension or termination of a national emergency. Thus they have opted to cede power to the Executive Branch and its discretion. In fact, Congress has never used the authority it granted itself with this law.  Given the continual post 9/11 state of emergency, Congress has NEVER abided by the National Security Act's stipulation that they approve of or discontinue the said state of emergency.  So, if Congress doesn't like a president's  emergency, they should simply use the power they granted themselves!