Shutdown Over Border Security?

[carpedm9587]

https://townhall.com/tipsheet/connor...gency-n2541854

I think there's a bit of a difference between a pandemic and freezing the assets of foreign nationals - and doing an end-run around Congress to get money Congress refused to provide.

Hopefully - NO future president will use this one's excuse as a justification for doing the same thing.

And, IMO, Congress should fix the NEA.

[Sparko]

I think there's a bit of a difference between a pandemic and freezing the assets of foreign nationals - and doing an end-run around Congress to get money Congress refused to provide.

I already said Trump was wrong in my opinion.

The list is of all of Obama's uses of the National Emergencies act. Some (at least the first one) seems legit. The others seem like an end-run around congress, the same as Trump is doing. Remember Obama and his "I have a pen?"
I don't see how some foreign person's assets being blocked is a national emergency, do you?

[carpedm9587]

I already said Trump was wrong in my opinion.

Noted

The list is of all of Obama's uses of the National Emergencies act. Some (at least the first one) seems legit. The others seem like an end-run around congress, the same as Trump is doing. Remember Obama and his "I have a pen?"
I don't see how some foreign person's assets being blocked is a national emergency, do you?

How is blocking the property or seizing the assets of a foreign national "doing an end run?" Is it Congress that usually does this?

[Sparko]

Noted



How is blocking the property or seizing the assets of a foreign national "doing an end run?" Is it Congress that usually does this?

Did you read the links? not all were about the property of a foreign national either.

Why do you think Obama needed invoke the National Emergency act to pass his executive orders? If you actually look at the orders they are not about blocking the bank accounts of a few individuals, they are mostly about imposing sanctions on other countries. Which would need an act of congress to approve.

I don't see Trump as being much different than any other president. But the MSM is acting like he did something unprecedented.

[carpedm9587]

Did you read the links? not all were about the property of a foreign national either.

I read the linked article. I see 12 instances, one for a pandemic and 11 that are about blocking property (and a couple include blocking entry and/or prohibiting transactions. The list includes Somalia, Libya, transnational criminal organizations, Burundi, Russia, Central Africa, Venezuela, and Sudan - and one for foreign agents engaged in cyber terrorism.

What are you seeing that I'm not?

Why do you think Obama needed invoke the National Emergency act to pass his executive orders? If you actually look at the orders they are not about blocking the bank accounts of a few individuals, they are mostly about imposing sanctions on other countries. Which would need an act of congress to approve.

The president actually does have some authority to impose sanctions without Congressional involvement. For example, he/she can do so under Title 22 of the U.S. Code. Now I have no idea if the specific situations listed here are covered by that (or any other) part of the U.S. Code - and I'm not a legal expert, so I cannot provide a definitive yeah/nay, but it does appear that there is a least precedence for presidential sanctions dating back to at least 1991.

On what basis do you claim that Obama had no legal right to make these declarations?

I don't see Trump as being much different than any other president. But the MSM is acting like he did something unprecedented.

As far as I can tell - there is no other case, since the passing of the NEA, where a president has used the act as a way to bypass an explicit "no" from Congress. If you know of another case - by all means share it.

[Tassman]

What we "know" is not the issue, Tass. The courts will look at Trump's choice and measure it against the act to determine legality. They may look at the act and determine its constitutionality. I don't know if this act has ever passed a constitutional test. But the act is badly written in that it does not offer an explanation for, or limit on, "national emergency." As such, there may be no way to rule Trump's declaration either "illegal" or "unconstitutional." The court does use another metric sometimes: harm. If Trump pulls funds from places and projects that can show grievous harm, that may be a path.

[carpedm9587]

I do not disagree that there is no national emergency. I do not disagree that Trump is overstepping. I merely note that the badly written act gives the courts very little to hang their "it's illegal" hat on. The one avenue I can see (with my legally neophyte brain) is that they will look at the act itself and determine that the act grants the executive branch too much unconstrained power and is in violation of the separation of powers and checks and balances embedded in the constitution. But with a right-leaning court and right-leaning executive - the only chance that will happen is if the courts are truly (as Roberts claims) independent and focused on the constitution and the law - and not the politics of the Executive and Legislative branches.

[Sparko]

I read the linked article. I see 12 instances, one for a pandemic and 11 that are about blocking property (and a couple include blocking entry and/or prohibiting transactions. The list includes Somalia, Libya, transnational criminal organizations, Burundi, Russia, Central Africa, Venezuela, and Sudan - and one for foreign agents engaged in cyber terrorism.

What are you seeing that I'm not?



The president actually does have some authority to impose sanctions without Congressional involvement. For example, he/she can do so under Title 22 of the U.S. Code. Now I have no idea if the specific situations listed here are covered by that (or any other) part of the U.S. Code - and I'm not a legal expert, so I cannot provide a definitive yeah/nay, but it does appear that there is a least precedence for presidential sanctions dating back to at least 1991.

On what basis do you claim that Obama had no legal right to make these declarations?



As far as I can tell - there is no other case, since the passing of the NEA, where a president has used the act as a way to bypass an explicit "no" from Congress. If you know of another case - by all means share it.

he had a legal right, by using the national emergencies act.

That is what the national emergency act does, let him bypass congress and use executive orders to have his way.

Here are two:

https://www.hsdl.org/?abstract&did=713916

https://www.federalregister.gov/docu...to-south-sudan

Slightly more than just blocking the bank accounts of a few individuals.

[carpedm9587]

he had a legal right, by using the national emergencies act.

That is what the national emergency act does, let him bypass congress and use executive orders to have his way.

Here are two:

https://www.hsdl.org/?abstract&did=713916

https://www.federalregister.gov/docu...to-south-sudan

Slightly more than just blocking the bank accounts of a few individuals.

Can you please go back through my posts and point out exactly where I ever said the emphasized part of your last post? If you can't (and you won't be able to - because I didn't say it), I have no reason to defend something I did not say or do not think.

As for the rest, you gave me links to two Obama EOs that do exactly what I described: restrict the flow of assets (i.e., block the property) of people related to Russia (in response to the flow of uranium and the risk it represents) and with respect to the Sudan.

What you did NOT do (which is what I asked) is to show me ANY instance of a declared National Emergency, from the passing of the act, that was passed explicitly because the president got a "no from Congress and used the act as an end-run around that no (i.e., to circumvent the power of Congress"). You will find several that occurred because Congress did not act at all - and the president believed action was required. That has happened many times since the the passing of the act. But none in which Congress acted - and made a decision different from what the President wanted, and the act was used to circumvent that decision.

So I repeat - do you have any examples? You would need to show which act by Congress preceded the Emergency Declaration and show the linkage. I can do that very easily for Trump. The Congressional act that preceded was passing a budget that did not contain everything Trump was asking for. The link is Trump's declaration of an Emergency to secure the funds he did NOT get in the budget (and more).

Further, my reading of the history of this act suggests that a high number had to do with exactly what Obama did: freeze assets or limit transactions. We see that from Carter, Reagan, Bush Sr., Clinton, and Bush Jr. So what is the point of the Obama list? He appears to have acted exactly like his predecessors, and not even at the highest rate. The number of national emergencies declared was Carter (1), Reagan (6), Bush Sr. (5), Clinton (9), Bush Jr. (12), and Obama (12) and Trump (4). Indeed, Obama declared an average of 1.5 emergencies per year. Trump has already declared an average of 2 per year, which is a higher rate than any of his predecessors.

So the complaint is...?

[Sparko]

Can you please go back through my posts and point out exactly where I ever said the emphasized part of your last post? If you can't (and you won't be able to - because I didn't say it), I have no reason to defend something I did not say or do not think.

I was referring to your comment [emphasis mine]:

I think there's a bit of a difference between a pandemic and freezing the assets of foreign nationals - and doing an end-run around Congress to get money Congress refused to provide.

As for the rest, you gave me links to two Obama EOs that do exactly what I described: restrict the flow of assets (i.e., block the property) of people related to Russia (in response to the flow of uranium and the risk it represents) and with respect to the Sudan.

What you did NOT do (which is what I asked) is to show me ANY instance of a declared National Emergency, from the passing of the act, that was passed explicitly because the president got a "no from Congress and used the act as an end-run around that no (i.e., to circumvent the power of Congress"). You will find several that occurred because Congress did not act at all - and the president believed action was required. That has happened many times since the the passing of the act. But none in which Congress acted - and made a decision different from what the President wanted, and the act was used to circumvent that decision.

So I repeat - do you have any examples? You would need to show which act by Congress preceded the Emergency Declaration and show the linkage. I can do that very easily for Trump. The Congressional act that preceded was passing a budget that did not contain everything Trump was asking for. The link is Trump's declaration of an Emergency to secure the funds he did NOT get in the budget (and more).

Further, my reading of the history of this act suggests that a high number had to do with exactly what Obama did: freeze assets or limit transactions. We see that from Carter, Reagan, Bush Sr., Clinton, and Bush Jr. So what is the point of the Obama list? He appears to have acted exactly like his predecessors, and not even at the highest rate. The number of national emergencies declared was Carter (1), Reagan (6), Bush Sr. (5), Clinton (9), Bush Jr. (12), and Obama (12) and Trump (4). Indeed, Obama declared an average of 1.5 emergencies per year. Trump has already declared an average of 2 per year, which is a higher rate than any of his predecessors.

So the complaint is...?

sigh...

When you don't want to accept a statement someone makes you will nitpick it to death asking for nonsense just to avoid admitting the other person has a point.

Do you expect the executive order to say, "I am doing this as an end run around congress?"

The fact that he used the national emergencies act to get through an executive order is evidence that he did an end-run around congress. If he had the power to do it himself without congress he would not have had to invoke a national emergency, would he?

And although he was doing much more than freezing the account of a few individuals, he was actually invoking SANCTIONS against the governments, if you believe he called a national emergency just to freeze some accounts then that would actually been an even worse misuse of a national emergency, to use it on such a trivial matter.

[carpedm9587]

I was referring to your comment [emphasis mine]:

Yes - that is what the EOs that I have read did - they controlled the assets of foreign nationals to meet certain emergency concerns. I have no idea where "a few individuals" came from. I said nothing about the number of people affected. As far as I know, the president cannot freeze the assets of a U.S. Citizen without due process.

Do you expect the executive order to say, "I am doing this as an end run around congress?"

No.

The fact that he used the national emergencies act to get through an executive order is evidence that he did an end-run around congress.

No.

If he had the power to do it himself without congress he would not have had to invoke a national emergency, would he?

The NEA is not designed to be an "end run around congress." It is a set of powers explicitly granted BY Congress in the event of a perceived emergency. By definition, Congress said "you can do this."

And although he was doing much more than freezing the account of a few individuals, he was actually invoking SANCTIONS against the governments, if you believe he called a national emergency just to freeze some accounts then that would actually been an even worse misuse of a national emergency, to use it on such a trivial matter.

First, the President has the power to make sanctions in various ways. He can do some under the U.S. Code (as I linked), and others he can do under the NEA or by simple EO. There is nothing illegal or circumventing of Congress about this. The current situation is different.

- Trump said, "I want X."
- Trump threatened to shutdown the government if he did not get X.
- Trump actually shut down the government when the bill he was offered did not contain X.
- Congress negotiated and came up with Y
- Trump explicitly signed and accepted the bill from Congress that gave him Y and explicitly did NOT give him X, limiting what he could do with Y (i.e., how much to be spent on border barrier.)
- Trump then declared a national emergency to get what Congress said he could not have

There is no other National Emergency Declaration from the signing of the NEA that even remotely approaches the profile: Congress said "no" so the president used the NEA to overrule what Congress said. The reason you can't provide an example is because it doesn't exist.

If Trump wants to overrule Congress, he can veto the bill and send it back insisting his demands be met. Instead, he is explicitly using the NEA to over-rule Congress. Hopefully, the courts will see that as the violation of the separation of powers that it represents. But I'm not holding my breath. My experience with the "originalists" is that they are originalists until it is not convenient, and then they start interpreting. Frankly, everyone is always interpreting - it's just that some don't acknowledge it.

[Sparko]

Yes - that is what the EOs that I have read did - they controlled the assets of foreign nationals to meet certain emergency concerns. I have no idea where "a few individuals" came from. I said nothing about the number of people affected. As far as I know, the president cannot freeze the assets of a U.S. Citizen without due process.



No.



No.



The NEA is not designed to be an "end run around congress." It is a set of powers explicitly granted BY Congress in the event of a perceived emergency. By definition, Congress said "you can do this."

sigh. And if he has to use those powers for something like freezing assets, then that is a misuse of those powers. It was not an emergency, any more than Trump claiming the caravan makes it an emergency this time. So yes it was an endrun around congress because he knew congress would not agree. So he used a loophole. As he said, "I have a pen!"

First, the President has the power to make sanctions in various ways. He can do some under the U.S. Code (as I linked), and others he can do under the NEA or by simple EO. There is nothing illegal or circumventing of Congress about this. The current situation is different.

- Trump said, "I want X."
- Trump threatened to shutdown the government if he did not get X.
- Trump actually shut down the government when the bill he was offered did not contain X.
- Congress negotiated and came up with Y
- Trump explicitly signed and accepted the bill from Congress that gave him Y and explicitly did NOT give him X, limiting what he could do with Y (i.e., how much to be spent on border barrier.)
- Trump then declared a national emergency to get what Congress said he could not have

There is no other National Emergency Declaration from the signing of the NEA that even remotely approaches the profile: Congress said "no" so the president used the NEA to overrule what Congress said. The reason you can't provide an example is because it doesn't exist.

If Trump wants to overrule Congress, he can veto the bill and send it back insisting his demands be met. Instead, he is explicitly using the NEA to over-rule Congress. Hopefully, the courts will see that as the violation of the separation of powers that it represents. But I'm not holding my breath. My experience with the "originalists" is that they are originalists until it is not convenient, and then they start interpreting. Frankly, everyone is always interpreting - it's just that some don't acknowledge it.

I am not defending Trump.

But you are going out of your way to defend Obama.

[carpedm9587]

And if he has to use those powers for something like freezing assets, then that is a misuse of those powers.

So you're suggesting every president since Carter has misused this power? Somehow, that just doesn't seem likely without any reaction from Congress.

It was not an emergency, any more than Trump claiming the caravan makes it an emergency this time. So yes it was an endrun around congress because he knew congress would not agree. So he used a loophole. As he said, "I have a pen!"

Not like Trump. This is claim you have not substantiated. When you show me an example of another president who directly opposed the will of Congress using the NEA, then I'll agree with you.

I am not defending Trump.

But you are going out of your way to defend Obama.

I actually have no problem with Obama's use of the NEA, or Bush's, or Clinton's, or Carter's, or Trump's first three uses - so yes - I will defend that they acted appropriately in those instances. Trump did not in this last instance - and it is substantively different from any other declaration before it.

[Sparko]

So you're suggesting every president since Carter has misused this power? Somehow, that just doesn't seem likely without any reaction from Congress.



Not like Trump. This is claim you have not substantiated. When you show me an example of another president who directly opposed the will of Congress using the NEA, then I'll agree with you.



I actually have no problem with Obama's use of the NEA, or Bush's, or Clinton's, or Carter's, or Trump's first three uses - so yes - I will defend that they acted appropriately in those instances. Trump did not in this last instance - and it is substantively different from any other declaration before it.

https://www.washingtonpost.com/blogs...=.ebc6134dca46

The result:

There are any number of marvelous things one might do as president, if Congress were not such a checked and balanced mess. But future presidents now have a new method at their disposal: Declare a long-running debate to be a national emergency. Challenge Congress, under threat of unilateral executive action, to legislate on the topic before your term runs out. And when lawmakers refuse, act with the most expansive definition of presidential power.

https://www.washingtonpost.com/opini...=.7b5efa454c5a


Pretty much exactly what Trump has done, and Obama even set the stage.

[mic drop]

[carpedm9587]

https://www.washingtonpost.com/blogs...=.ebc6134dca46

The result:

There are any number of marvelous things one might do as president, if Congress were not such a checked and balanced mess. But future presidents now have a new method at their disposal: Declare a long-running debate to be a national emergency. Challenge Congress, under threat of unilateral executive action, to legislate on the topic before your term runs out. And when lawmakers refuse, act with the most expansive definition of presidential power.

https://www.washingtonpost.com/opini...=.7b5efa454c5a

Pretty much exactly what Trump has done, and Obama even set the stage.

[mic drop]

So - no, not so much. Obama did not act to defy Congress. Obama acted because Congress refused to act. Congress was not saying "no." Congress was saying nothing. No immigration bill was passed by either house of Congress for Obama to sign, as far as I know. So you are comparing apples to oranges.

Does that mean Obama did the best thing? Frankly - no. Anyone with a mind could see that what one president could do with a pen another could undo with the same pen. Anything that is going to last and have teeth needs the legislative and executive branch on board. That's how the system works. And Obama said this repeatedly: send me a bill to sign, and I won't have to do this.

Trump WAS sent a bill to sign - and signed it. Then declared an emergency to explicitly defy the will of Congress, because he disagreed with them.

So, in short:

Obama: if you're not going to do anything, then I am.
Trump: I don't like what you did, so I'm going to change it.

They are not the same thing.