Judge Nap: Trump's Brazen Unconstitutional Overreach

[PAF]

Last week, President Donald Trump followed through on a threat he had been making for months. It was not a blistering or insulting tweet. It was not an attack on the press or congressional Democrats. It was an attack on the Constitution.

Here is the back story.

In 2015, Trump began offering that as president, he would build a “big, beautiful wall” along the border of the United States and Mexico and that Mexico would pay for the wall. His stated purpose throughout the 2016 presidential campaign and beyond was that a wall is necessary to stop the onslaught of immigrants illegally entering the United States at places other than lawful ports of entry.

He also offered his personal view that many of the folks entering through these unapproved areas are gang members who are trafficking in drugs and human slavery.

After the president of Mexico rejected paying for a wall, Trump asked Congress to do so. Curiously, he did not ask for the wall payment during the first two years of his presidency — when Republicans controlled both houses of Congress — but waited until the Democrats, who largely oppose the wall, were in control of the House.

So determined has he been to build a wall — any wall, so as to be able to assert that he has fulfilled a campaign promise — that he has dropped his demand that Mexico pay for it, modified his demand that it even be a wall (because his own Border Patrol folks told him that a wall would impair their ability to observe behavior on the south side of it) and reduced the length of his proposed barrier from 1,000 miles to 55 miles. Congress still refused.

So determined has he been to build a barrier of any length that he rejected budgetary measures that had been passed by both the Republican Senate and the then-Republican House, and permitted about one-third of the federal government to shut down for 35 days at the end of 2018 and the beginning of 2019. During negotiations, he demanded $5.7 billion as a down payment for his $25 billion wall. Then, seeing the misery the shutdown caused, he relented and signed essentially the same spending legislation that had been passed before and that he had rejected, though it was only for three weeks. He continued to demand $5.7 billion, but all Congress would give him was $1.4 billion for border security, much of it not for a wall and none of it for where he wants to build.

After he signed the legislation with little money for the wall, he signed an executive order declaring a national emergency at the U.S.-Mexico border. He described the migrants there as being engaged in an “invasion,” so he ordered the departments of Defense and Homeland Security to divert unspent appropriations, money authorized by Congress for other purposes, to building a wall.

Was it legal for him to do that? In a word: No. As my colleagues at The Wall Street Journal wrote last week: President Trump, meet Justice Jackson. Robert Jackson was the last attorney general of the United States and the last justice of the U.S. Supreme Court never to have graduated from law school. He was also a gifted jurist who played a pivotal role in a famous case in 1952.

In 1952, when American steelworkers went on strike and the U.S. military was fighting the Korean War, President Harry Truman asked Congress for the authority to occupy the steel mills and pay nonunion workers to replace the strikers. When Congress refused, Truman declared a state of emergency and directed his secretary of commerce, Charles Sawyer, to hire workers at federal expense to operate the mills.

When the mills’ owners challenged Truman’s order, a federal district judge enjoined the president from enforcing it, and the Supreme Court upheld the injunction. Youngstown Sheet & Tube v. Sawyer, known as the Steel Seizure Case, held that the president was without authority to occupy private property and pay others to do so without express appropriations from Congress because the Constitution defines clearly that no federal dollars can be spent without an appropriation by Congress.

Now, back to Justice Jackson. Rarely in Supreme Court history has a concurring opinion been cited and relied upon by future courts more than the majority opinion, but this case is the exception. In concurring with the majority on the court, Justice Jackson offered his now iconic views of the presidency vis-a-vis Congress under the Constitution.

When the president acts pursuant to authority granted to him by the Congress in an area of government delegated to him by the Constitution, his authority is at its peak, and he is free to exercise it as he sees fit. When he acts in an area as to which the Congress has been silent, he acts in a twilight zone and can succeed only if the area of his behavior is delegated to him under the Constitution and if he enjoys broad public support.

But when the president acts in an area that the Constitution gives exclusively to Congress — such as spending money — and when he acts in defiance of Congress, his acts are unconstitutional and are to be enjoined.

Years later, Justice Anthony Kennedy would explain that presidents cannot act as if they were Congress any more than Congress can act as if it were the president. They cannot constitutionally exchange roles voluntarily, much less by defiance. This underscores the separation of powers. It is the most integral unique aspect of our Constitution. James Madison argued that it preserves personal liberty by keeping both the president and the Congress in check — even if it means they are sometimes at tension with each other.

President Trump’s emergency declaration would be viable, though probably unsubstantiated factually, if it did not involve spending money. But by spending money not unauthorized by Congress, he has failed to uphold the Constitution, which he has sworn to preserve, protect and defend.



https://www.lewrockwell.com/2019/02/andrew-p-napolitano/trumps-brazen-unconstitutional-overreach/

[goldenequity]

"presidents cannot act as if they were Congress any more than Congress can act as if it were the president. They cannot constitutionally exchange roles."

"by spending money not unauthorized by Congress, he has failed to uphold the Constitution."

aye.

figure out a different way to secure the border.

[juleswin]

But couldn't he just pretend that he is fighting terrorism with the money. I mean, he is funding troops in Syria, Yemen, Niger etc without ever getting congressional funding for it. Can't he just use the same rational to fund the wall?

[PAF]

"presidents cannot act as if they were Congress any more than Congress can act as if it were the president. They cannot constitutionally exchange roles."

"by spending money not unauthorized by Congress, he has failed to uphold the Constitution."

aye.

figure out a different way to secure the border.





because his own Border Patrol folks told him that a wall would impair their ability to observe behavior on the south side of it




known as the Steel Seizure Case, held that the president was without authority to occupy private property and pay others to do so



End Incentives and gain freedom/liberty and fiscal responsibility. Its the only way.

[Swordsmyth]

Congress granted him the money when they passed the emergency law.

Judge Swamp is wrong again.

If you don't like the emergency law then it should be repealed.

[TheCount]

Congress granted him the money when they passed the emergency law.

When was the emergency law passed? Was it, by any chance, this fiscal year or last?

Where did the bill originate? The house or the senate?

[Swordsmyth]

When was the emergency law passed? Was it, by any chance, this fiscal year?
It doesn't matter.

[spudea]

seems like he really means the law authorizing the president appropriation authority for national emergencies is unconstitutional. If so I would expect the courts to rule the entire law unconstitutional instead of just enjoining Trumps use of it, but we know that won't be the case in the LOONY 9th circuit. Where's Pelosi and her resolution of disapproval??? Is she delaying it because of the court case? If she passes it in the house and it fails in the senate, that would require the courts to consider that congress is not silent on this, and by not passing the disapproval means they approve.

[TheCount]

It doesn't matter.

Would that be because you don't give a fuck about the constitution?

[Swordsmyth]

Would that be because you don't give a $#@! about the constitution?
Nowhere in the Constitution does it say that money may only be appropriated for the current fiscal year, in fact the army is LIMITED to receiving appropriations for TWO years at a time which means that anything not so limited could receive an appropriation any number of years ahead of time.

[TheCount]

Nowhere in the Constitution does it say that money may only be appropriated for the current fiscal year, in fact the army is LIMITED to receiving appropriations for TWO years at a time which means that anything not so limited could receive an appropriation any number of years ahead of time.

Which money is he using? Military, yes?


So... is the emergency powers act an appropriations bill of infinite quantity and duration?

[Swordsmyth]

Which money is he using? Military, yes?
The Military is not just the army and the army was not given the money in an appropriation that was longer than two years.
The President is not the army.



So... is the emergency powers act an appropriations bill of infinite quantity and duration?
It seems to be and that may not be a very good idea, perhaps Congress should repeal it.

[Stratovarious]

I am losing faith in Trump as I have said, however my once 'great respect' for
Judge Napolitano evaporated a year or so ago.

[TheCount]

The Military is not just the army

Swordsmyth of the present, please let me introduce you to the Swordsmyth from last year. Have you heard of him? He's the one who argued that all military forces which are based on land are armies.


The Air Farce is an army and A1S8 gives Congress the power to raise and support armies (note the plural), just because they use different weapons than were available to the founders doesn't make them not an army.

With that in mind, if you could clarify exactly what sort of not-for-the-many-armies non-land-based military construction money could be used for Il Douche's boondoggle, I'm genuinely curious. I've read that there's some money that's been appropriated for military construction in Wisconsin and Missouri which could be diverted. How many billions of dollars do you suppose that the Navy spends on construction in Wisconsin and Missouri?



and the army was not given the money in an appropriation that was longer than two years.

That money is not being drawn from the treasury for this year's appropriation, but for a bill from 1976.



It seems to be and that may not be a very good idea, perhaps Congress should repeal it.
If your version of reality were correct, they wouldn't have to; it would be unconstitutional and Trump would lose in court.

[Swordsmyth]

Swordsmyth of the present, have ever you met the Swordsmyth from last year? He's the one who argued that all military forces which are based on land are armies.



With that in mind, if you could clarify exactly what sort of not-for-the-many-armies non-land-based military construction money could be used for Il Douche's boondoggle, I'm genuinely curious. I've read that there's some money that's been appropriated for military construction in Wisconsin and Missouri which could be diverted. How many billions of dollars do you suppose that the Navy spends on construction in Wisconsin and Missouri?
So you do know about the navy?
That irrelevant anyway as I already stated, Trump is not the army and the army was given those fund in an appropriation that was not longer than two years.





That money is not being drawn from the treasury for this year's appropriation, but for a bill from 1976.
It was given to the army in an appropriation that was not in excess of two years, it was given to Trump in 1976, Trump is not the army.




If your version of reality were correct, they wouldn't have to; it would be unconstitutional and Trump would lose in court.
:rolleyes:

[TheCount]

It was given to the army in an appropriation that was not in excess of two years, it was given to Trump in 1976, Trump is not the army.

Ah, good, you've at least codified one thing, if only by accident: You believe that the Emergency Powers Act of 1976 is the appropriations bill which appropriated money in an unlimited quantity and for an unlimited duration, and that Trump will spend that money on border wall construction in 2019.


Is that legally and constitutionally possible?

[Swordsmyth]

Ah, good, you've at least codified one thing, if only by accident: You believe that the Emergency Powers Act of 1976 is the appropriations bill which appropriated money for border wall construction in 2019.


Is that legally and constitutionally possible?
Yes, if you don't like it then get the law or the Constitution changed.

[RonZeplin]

They could use Department of Education funds to make sure the Dream Students don't end up in the wrong country?

[TheCount]

Yes, if you don't like it then get the law or the Constitution changed.

I don't think I need to. We'll certainly find out, though, won't we? :D


No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law;

[Swordsmyth]

I don't think I need to. We'll certainly find out, though, won't we? :D
It is an appropriation made by law.

[fedupinmo]

"presidents cannot act as if they were Congress any more than Congress can act as if it were the president. They cannot constitutionally exchange roles."

"by spending money not unauthorized by Congress, he has failed to uphold the Constitution."

aye.

figure out a different way to secure the border.

A: The money is already authorized by Congress, but through a continuing resolution, not a budget.
B: The feddies are required by the Constitution to protect the states from invasion, and no one single branch is charged with this duty.
If Congress passed an actual budget, the prez would be bound to spend the money where they put it. As they didn't, he has considerably more leeway in spreading it around.

[Superfluous Man]

Congress granted him the money when they passed the emergency law.

Can you provide us with a link to this law where we can see that your characterization of it is accurate?

[Brian4Liberty]

seems like he really means the law authorizing the president appropriation authority for national emergencies is unconstitutional. If so I would expect the courts to rule the entire law unconstitutional instead of just enjoining Trumps use of it, but we know that won't be the case in the LOONY 9th circuit. Where's Pelosi and her resolution of disapproval??? Is she delaying it because of the court case? If she passes it in the house and it fails in the senate, that would require the courts to consider that congress is not silent on this, and by not passing the disapproval means they approve.

That’s what I was thinking. It is strange for Judge Nap to exclude that law from his discussion of the issue.

[Brian4Liberty]

That’s what I was thinking. It is strange for Judge Nap to exclude that law from his discussion of the issue.

Specifically:


The National Emergencies Act (NEA) (Pub.L. 94–412, 90 Stat. 1255, enacted September 14, 1976, codified at 50 U.S.C. § 1601–1651) is a United States federal law passed to end all previous national emergencies and to formalize the emergency powers of the President.
...
https://en.m.wikipedia.org/wiki/National_Emergencies_Act

[Superfluous Man]

Specifically:

I can't find anything in 50 U.S.C. § 1601–1651 that undermines what Nap said in the OP. Can you?

Spudea may be right that the entire National Emergency Act is unconstitutional, and ought to be found as such by the Supreme Court, if Trump's recent declaration of a national emergency gets challenged.

But that said, as far as I can tell, Trump's national emergency declaration is an unprecedented application of that act in precisely the respect that Napolitano writes about.

The key paragraphs I see as these:

When the president acts pursuant to authority granted to him by the Congress in an area of government delegated to him by the Constitution, his authority is at its peak, and he is free to exercise it as he sees fit. When he acts in an area as to which the Congress has been silent, he acts in a twilight zone and can succeed only if the area of his behavior is delegated to him under the Constitution and if he enjoys broad public support.

But when the president acts in an area that the Constitution gives exclusively to Congress — such as spending money — and when he acts in defiance of Congress, his acts are unconstitutional and are to be enjoined.

It may be that the National Emergency Act does unconstitutionally legalize that kind of defiance of Congress in spending money, and it just happens to be that no president until now has put it to the test on that. But it may also be that it doesn't, and Trump's action really is authorized by neither the Constitution nor that law.

[johnwk]

"presidents cannot act as if they were Congress any more than Congress can act as if it were the president. They cannot constitutionally exchange roles."

"by spending money not unauthorized by Congress, he has failed to uphold the Constitution."

aye.

figure out a different way to secure the border.

Oh, but under the National Emergencies Act of 1976 Congress authorized the president to have access to certain funds allocated by Congress. Judge Nap cannot defend his opinion when reading the Act.. The only legitimate question is, does the ongoing invasion of our southern border rise to an emergency status? The check on this delegated power is Congress voting to deny an emergency exists.


Keep in mind order patrol agents apprehended more than 100,000 people trying to enter the country illegally in just October and November of last year. [B]LINK (https://www.investors.com/politics/editorials/trump-crisis-at-the-border/)


By the way see: 10 U.S. Code 2808 (https://www.law.cornell.edu/uscode/text/10/2808) and 33 U.S. Code 2293 (https://www.law.cornell.edu/uscode/text/33/2293) with regard to the President using available funds.



JWK

There is no surer way to weaken, subdue, demoralize and then conquer a prosperous and freedom loving people than by allowing and encouraging the poverty stricken, poorly educated, low-skilled, criminal and diseased populations of other countries to invade that country, and make the country’s existing citizens tax-slaves to support the economic needs of such invaders.

[Superfluous Man]

Oh, but under the National Emergencies Act of 1976 Congress authorized the president to have access to certain funds allocated by Congress. Judge Nap cannot defend his opinion when reading the Act.

Can you please quote the part of the act you're talking about that if Judge Nap read it he would not be able to defend his opinion?

[Sonny Tufts]

It'll be interesting to see how the courts treat Trump's admission that "I didn't have to do this", which undercuts his claim that there's an emergency.

[Brian4Liberty]

Can you please quote the part of the act you're talking about that if Judge Nap read it he would not be able to defend his opinion?

As this has been debated endlessly in the past few weeks, the Emergency Powers Act has been front and center in the debate. Judge Nap should have addressed it. That is the point. It comes off as deceptive to omit that at this point.

[Brian4Liberty]

I can't find anything in 50 U.S.C. § 1601–1651 that undermines what Nap said in the OP. Can you?

Spudea may be right that the entire National Emergency Act is unconstitutional, and ought to be found as such by the Supreme Court, if Trump's recent declaration of a national emergency gets challenged.

But that said, as far as I can tell, Trump's national emergency declaration is an unprecedented application of that act in precisely the respect that Napolitano writes about.

The key paragraphs I see as these:


It may be that the National Emergency Act does unconstitutionally legalize that kind of defiance of Congress in spending money, and it just happens to be that no president until now has put it to the test on that. But it may also be that it doesn't, and Trump's action really is authorized by neither the Constitution nor that law.

I am not going to read the act. My opinion on this has not changed since Trump first declared it.


I’m sure I’ve missed all kinds of stimulating debate on the subject, but these “National Emergencies” declared by the President should be unconstitutional. When we have these edicts outstanding for decades, they are not emergencies in any sense of the word. They are policy with the weight of law. True emergencies should be like war, with a declaration from Congress.

If this goes to the Supreme Court, the best outcome would be to rule the entire concept unconstitutional, and declare all outstanding POTUS declared “national emergencies” null and void.

How much leeway the executive branch has to move around funds and fulfill it’s duty as the executive branch may be debatable, but this “emergency declaration” power should definitely lie with Congress, not the POTUS.

[Superfluous Man]

I am not going to read the act.

I have noticed that this has been a running theme for those defending Trump's order.

[Brian4Liberty]

I have noticed that this has been a running theme for those defending Trump's order.

You read the entire and act and tell me why you think it’s Constitutional.

I would rather hear Judge Nap discuss it, but he dodged it.

[Superfluous Man]

You read the entire and act and tell me why you think it’s Constitutional.

I would rather hear Judge Nap discuss it, but he dodged it.

That would be a good thing for him to discuss some time. I'd be curious to see if he thinks the National Emergency Act itself is unconstitutional.

But whether the entire National Emergency Act is unconstitutional is a separate question from the one he's addressing in the article in the OP, which is the constitutionality of Trump's use of a declaration of a national emergency to spend money in defiance of Congress.

Since the National Emergency Act was passed, a lot of presidents have declared emergencies. But I don't think a single one of those has been anything like Trump's in this respect. So the two questions are not the same. Even if the National Emergency Act is constitutional, that wouldn't make Trump's action constitutional.

It may be that precedent prior to the passage of the National Emergency Act, such as the case Judge Nap discusses in that article, which dates from a time that presidents had even more leeway in their use of emergency powers than they have had since the passage of that act, circumscribes the president's powers enough for Nap to make his point without mentioning differences between the more limited emergency powers presidents have now and the more expansive ones they had back then.

[Schifference]

The problem with having congress decide emergencies is that they are too partisan these days or I should say the left is too partisan. Congress acts like children. I know you are but what am I. Na Na Na Na Na Na..... Nothing can get done when people in power are hypocrites. One day when this person is president xyz is very important. The next day when a different person is president xyz is not an issue.

[johnwk]

Can you please quote the part of the act you're talking about that if Judge Nap read it he would not be able to defend his opinion?

I'm referring to this: "Judge Nap: Trump's Brazen Unconstitutional Overreach"



I see no "overreach". Do you? If so, specify. Judge Nap likes to make crap up about our Constitution, just as he did with lying that a child born to an illegal alien while on America soil is bestowed citizenship by the terms of the 14th Amendment.


JWK

[johnwk]

Can you please quote the part of the act you're talking about that if Judge Nap read it he would not be able to defend his opinion?

See: 10 U.S. Code 2808 (https://www.law.cornell.edu/uscode/text/10/2808) and 33 U.S. Code 2293 (https://www.law.cornell.edu/uscode/text/33/2293) with regard to the President using available funds.

JWK

[dannno]

That’s what I was thinking. It is strange for Judge Nap to exclude that law from his discussion of the issue.

The Judge has just been going on tv making shit up for the last year and a half since he became buddies with Trump and they decided he needed to oppose Trump in the news so he could nominate him for Supreme Court later.

It's been pretty obvious, I've never seen him make these kind of gaffs before.. just started happening one day, and it's been consistent since then.

Hopefully he replaces RBG soon.

[Superfluous Man]

I see no "overreach". Do you? If so, specify.

Absolutely. I see precisely the same overreach that Judge Nap explains in the OP. It would be one thing if Trump were allocating money toward something Congress had not voted on. But when he just finished a lengthy period of negotiating with Congress to get money for something he wants, and they refused to give him as much as he wants for it, and then he resorts to declaring a national emergency as a means of taking that money from somewhere else in defiance of Congress, that undermine's Congress's power over the purse.

[Superfluous Man]

See: 10 U.S. Code 2808 (https://www.law.cornell.edu/uscode/text/10/2808) and 33 U.S. Code 2293 (https://www.law.cornell.edu/uscode/text/33/2293) with regard to the President using available funds.

JWK

Both of those codes specifically stipulate that the president's authority to authorize those uses of funds is limited to national emergencies that require the use of the Armed Forces. Building a border wall plainly does not require the use of the Armed Forces. The only reason Trump is going about it this way is because that's the only way to shoe-horn it into something covered by the laws you cite.

But even more importantly, nothing in either of those codes contradicts the point Judge Nap argues in the OP. The uses of funds pursuant to those codes must still be subject to constitutional limitations. As Nap says:

When the president acts pursuant to authority granted to him by the Congress in an area of government delegated to him by the Constitution, his authority is at its peak, and he is free to exercise it as he sees fit. When he acts in an area as to which the Congress has been silent, he acts in a twilight zone and can succeed only if the area of his behavior is delegated to him under the Constitution and if he enjoys broad public support.

But when the president acts in an area that the Constitution gives exclusively to Congress — such as spending money — and when he acts in defiance of Congress, his acts are unconstitutional and are to be enjoined.

[acptulsa]

Is that legally and constitutionally possible?

Sure. It's just not physically possible.


It is an appropriation made by law.

That's funny. Good job.

Of course, if you were serious about Congress appropriating 1976 dollars to 2019 projects without actually setting any FRNs aside at all (because who can set aside something that won't be created for forty years?) then calling such an act an appropriation would be so fucking stupid that it would be sad. It would be pitiful. It wouldn't be funny at all. It would be the sort of thing only a possum-level-intellect submoron could say.

But we all know you were joking. Good one.

[Brian4Liberty]

The problem with having congress decide emergencies is that they are too partisan these days or I should say the left is too partisan. Congress acts like children. I know you are but what am I. Na Na Na Na Na Na..... Nothing can get done when people in power are hypocrites. One day when this person is president xyz is very important. The next day when a different person is president xyz is not an issue.

I would propose that if Congress can’t get a 90% vote on something, it is no “emergency”.

You are right about the left being too partisan. The left is the side of emotion, thus they are perfectly happy (and vindictive) to oppose anything just because it is associated with Trump.

It’s pretty clear by seeing all of the videos of Democrats calling for immigration and border control in the recent past. OANN shows them constantly.


https://www.youtube.com/watch?v=LkgXPtDR-xQ

[johnwk]

Both of those codes specifically stipulate that the president's authority to authorize those uses of funds is limited to national emergencies that require the use of the Armed Forces. Building a border wall plainly does not require the use of the Armed Forces. The only reason Trump is going about it this way is because that's the only way to shoe-horn it into something covered by the laws you cite.

But even more importantly, nothing in either of those codes contradicts the point Judge Nap argues in the OP. The uses of funds pursuant to those codes must still be subject to constitutional limitations. As Nap says:


Thank you for your opinion but, those statutes do allow the president to access the money in question.



Did you know our founders mentioned "invasions" three times in our Constitution, one obligating our federal government to "repel invasions"? Is it not incumbent upon our president to repel the invasion taking place at our southern border? Do you think our constitution can be made into a suicide pact?


Why are you all bent out of shape over President Trump, unlike our do nothing Congress, actually working to repel an ongoing invasion of our border? Do you not think the ongoing invasion is destructive to the general welfare of the United States and her citizens?


JWK

Illegal immigration is now costing American citizens over $18 billion a year in healthcare costs alone! Far more than the measly $5.7 billion asked for to build a wall! LINK (https://www.forbes.com/sites/theapothecary/2018/02/26/how-american-citizens-finance-health-care-for-undocumented-immigrants/#193737f912c4)

[Superfluous Man]

Thank you for your opinion but, those statutes do allow the president to access the money in question.



Did you know our founders mentioned "invasions" three times in our Constitution, one obligating our federal government to "repel invasions"? Is it not incumbent upon our president to repel the invasion taking place at our southern border? Do you think our constitution can be made into a suicide pact?


Why are you all bent out of shape over President Trump, unlike our do nothing Congress, actually working to repel an ongoing invasion of our border? Do you not think the ongoing invasion is destructive to the general welfare of the United States and her citizens?


JWK

Illegal immigration is now costing American citizens over $18 billion a year in healthcare costs alone! Far more than the measly $5.7 billion asked for to build a wall! LINK (https://www.forbes.com/sites/theapothecary/2018/02/26/how-american-citizens-finance-health-care-for-undocumented-immigrants/#193737f912c4)

The only way to call the peaceful immigration of people an invasion is by redefining the word "invasion" to something it was not understood to mean by those who ratified the Constitution. Since I believe the Constitution needs to be interpreted according to the meaning its words were taken to have by those who ratified it, and reject a living document approach, I cannot accept your view of the word "invasion."

I already explained why the codes you cited do not allow the president to reallocate funds as he is trying to do. If they did though, then that would mean they were unconstitutional. Congress has no authority to pass unconstitutional laws.

[Swordsmyth]

The only way to call the peaceful immigration of people an invasion is by redefining the word "invasion" to something it was not understood to mean by those who ratified the Constitution. Since I believe the Constitution needs to be interpreted according to the meaning its words were taken to have by those who ratified it, and reject a living document approach, I cannot accept your view of the word "invasion."
Prove that.

[Swordsmyth]

The only way to call the peaceful immigration of people an invasion is by redefining the word "invasion" to something it was not understood to mean by those who ratified the Constitution. Since I believe the Constitution needs to be interpreted according to the meaning its words were taken to have by those who ratified it, and reject a living document approach, I cannot accept your view of the word "invasion."


Webster's Dictionary 1828
INVA'SION, noun s as z. [Latin invasio, from invado. See Invade (http://webstersdictionary1828.com/Dictionary/invasion#).]
1. A hostile entrance into the possessions of another; particularly, the entrance of a hostile army into a country for the purpose of conquest or plunder, or the attack of a military force. The north of England and south of Scotland were for centuries subject to invasion each from the other. The invasion of England by William the Norman, was in 1066.

2. An attack on the rights of another; infringement or violation.
3. Attack of a disease; as the invasion of the plague, in Egypt.



http://webstersdictionary1828.com/Dictionary/invasion


The "particularly" doesn't save you from the primary definition, especially since the Constitution made sure to give Congress power over immigration:


https://www.constitution.org/cmt/law_of_nations.htm

The meaning of "Offenses against the Law of Nations"

Art. I Sec. 8 Cl. 10 of the Constitution for the United States delegates the power to Congress to "define and punish ... Offenses against the Law of Nations". It is important to understand what is and is not included in the term of art "law of nations", and not confuse it with "international law". They are not the same thing. The phrase "law of nations" is a direct translation of the Latin jus gentium, which means the underlying principles of right and justice among nations, and during the founding era was not considered the same as the "laws", that is, the body of treaties and conventions between nations, the jus inter gentes, which, combined with jus gentium, comprise the field of "international law". The distinction goes back to ancient Roman Law.

Briefly, the Law of Nations at the point of ratification in 1788 included the following general elements, taken from Blackstone's Commentaries, and prosecution of those who might violate them:

(1) No attacks on foreign nations, their citizens, or shipping, without either a declaration of war or letters of marque and reprisal.

(2) Honoring of the flag of truce, peace treaties, and boundary treaties. No entry across national borders without permission of national authorities.

(3) Protection of wrecked ships, their passengers and crew, and their cargo, from depredation by those who might find them.

(4) Prosecution of piracy by whomever might be able to capture the pirates, even if those making the capture or their nations had not been victims.

(5) Care and decent treatment of prisoners of war.

(6) Protection of foreign embassies, ambassadors, and diplomats, and of foreign ships and their passengers, crew, and cargo while in domestic waters or in port.

(7) Honoring of extradition treaties for criminals who committed crimes in a nation with whom one has such a treaty who escape to one's territory or are found on the high seas established with all nations in 1788,

(8) Prohibition of enslavement of foreign nationals and international trading in slaves.



Article 1

Section 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight

[TheCount]

<random bullshit>

If the founding fathers thought that immigration was a hostile act of invasion... why is the constitution and early history of the country completely devoid of any kind of immigration control?

[Swordsmyth]

If the founding fathers thought that immigration was a hostile act of invasion... why is the constitution and early history of the country completely devoid of any kind of immigration control?
They didn't think that immigration in the absence of controls was an invasion and they didn't impose controls because the population was so small and the territory was so large that they thought immigration would be a good thing because the rest of the world wasn't so different from us regarding liberty but they foresaw the potential need to control immigration and built that power into the Constitution, they would most certainly have classified 20+ Million people entering in violation of restrictions we set as an invasion.

[fedupinmo]

Both of those codes specifically stipulate that the president's authority to authorize those uses of funds is limited to national emergencies that require the use of the Armed Forces. Building a border wall plainly does not require the use of the Armed Forces. The only reason Trump is going about it this way is because that's the only way to shoe-horn it into something covered by the laws you cite.

But even more importantly, nothing in either of those codes contradicts the point Judge Nap argues in the OP. The uses of funds pursuant to those codes must still be subject to constitutional limitations. As Nap says:

When the president acts pursuant to authority granted to him by the Congress in an area of government delegated to him by the Constitution, his authority is at its peak, and he is free to exercise it as he sees fit. When he acts in an area as to which the Congress has been silent, he acts in a twilight zone and can succeed only if the area of his behavior is delegated to him under the Constitution and if he enjoys broad public support.

But when the president acts in an area that the Constitution gives exclusively to Congress — such as spending money — and when he acts in defiance of Congress, his acts are unconstitutional and are to be enjoined.
Bullshit. The president doesn't need Congress' approval to exercise power granted to him by the Constitution, the power is his. If Congress grants him the power in question, and it is not unconstitutional, he can exercise it without their pemission until they take it away by legislation passed according to the Constitution. If Congress gives power to one president, they give it to all of them.

[unknown]

Congress granted him the money when they passed the emergency law.

Judge Swamp is wrong again.

If you don't like the emergency law then it should be repealed.

Judge Swamp? How so?

[unknown]

my once 'great respect' for Judge Napolitano evaporated a year or so ago.

Any particular reason why?

His understanding of the Constitution seems to be as the Founders intended.

[Swordsmyth]

Judge Swamp? How so?

Here is my thread keeping track of his Swampy behavior:

Judge Swamp strikes again (http://www.ronpaulforums.com/showthread.php?523218-Judge-Swamp-strikes-again)
Some of the videos have been deleted but most of it is still there.

[unknown]

Last week, President Donald Trump followed through on a threat he had been making for months. It was not a blistering or insulting tweet. It was not an attack on the press or congressional Democrats. It was an attack on the Constitution.

Here is the back story.

In 2015, Trump began offering that as president, he would build a “big, beautiful wall” along the border of the United States and Mexico and that Mexico would pay for the wall. His stated purpose throughout the 2016 presidential campaign and beyond was that a wall is necessary to stop the onslaught of immigrants illegally entering the United States at places other than lawful ports of entry.

He also offered his personal view that many of the folks entering through these unapproved areas are gang members who are trafficking in drugs and human slavery.

After the president of Mexico rejected paying for a wall, Trump asked Congress to do so. Curiously, he did not ask for the wall payment during the first two years of his presidency — when Republicans controlled both houses of Congress — but waited until the Democrats, who largely oppose the wall, were in control of the House.

So determined has he been to build a wall — any wall, so as to be able to assert that he has fulfilled a campaign promise — that he has dropped his demand that Mexico pay for it, modified his demand that it even be a wall (because his own Border Patrol folks told him that a wall would impair their ability to observe behavior on the south side of it) and reduced the length of his proposed barrier from 1,000 miles to 55 miles. Congress still refused.

So determined has he been to build a barrier of any length that he rejected budgetary measures that had been passed by both the Republican Senate and the then-Republican House, and permitted about one-third of the federal government to shut down for 35 days at the end of 2018 and the beginning of 2019. During negotiations, he demanded $5.7 billion as a down payment for his $25 billion wall. Then, seeing the misery the shutdown caused, he relented and signed essentially the same spending legislation that had been passed before and that he had rejected, though it was only for three weeks. He continued to demand $5.7 billion, but all Congress would give him was $1.4 billion for border security, much of it not for a wall and none of it for where he wants to build.

After he signed the legislation with little money for the wall, he signed an executive order declaring a national emergency at the U.S.-Mexico border. He described the migrants there as being engaged in an “invasion,” so he ordered the departments of Defense and Homeland Security to divert unspent appropriations, money authorized by Congress for other purposes, to building a wall.

Was it legal for him to do that? In a word: No. As my colleagues at The Wall Street Journal wrote last week: President Trump, meet Justice Jackson. Robert Jackson was the last attorney general of the United States and the last justice of the U.S. Supreme Court never to have graduated from law school. He was also a gifted jurist who played a pivotal role in a famous case in 1952.

In 1952, when American steelworkers went on strike and the U.S. military was fighting the Korean War, President Harry Truman asked Congress for the authority to occupy the steel mills and pay nonunion workers to replace the strikers. When Congress refused, Truman declared a state of emergency and directed his secretary of commerce, Charles Sawyer, to hire workers at federal expense to operate the mills.

When the mills’ owners challenged Truman’s order, a federal district judge enjoined the president from enforcing it, and the Supreme Court upheld the injunction. Youngstown Sheet & Tube v. Sawyer, known as the Steel Seizure Case, held that the president was without authority to occupy private property and pay others to do so without express appropriations from Congress because the Constitution defines clearly that no federal dollars can be spent without an appropriation by Congress.

Now, back to Justice Jackson. Rarely in Supreme Court history has a concurring opinion been cited and relied upon by future courts more than the majority opinion, but this case is the exception. In concurring with the majority on the court, Justice Jackson offered his now iconic views of the presidency vis-a-vis Congress under the Constitution.

When the president acts pursuant to authority granted to him by the Congress in an area of government delegated to him by the Constitution, his authority is at its peak, and he is free to exercise it as he sees fit. When he acts in an area as to which the Congress has been silent, he acts in a twilight zone and can succeed only if the area of his behavior is delegated to him under the Constitution and if he enjoys broad public support.

But when the president acts in an area that the Constitution gives exclusively to Congress — such as spending money — and when he acts in defiance of Congress, his acts are unconstitutional and are to be enjoined.

Years later, Justice Anthony Kennedy would explain that presidents cannot act as if they were Congress any more than Congress can act as if it were the president. They cannot constitutionally exchange roles voluntarily, much less by defiance. This underscores the separation of powers. It is the most integral unique aspect of our Constitution. James Madison argued that it preserves personal liberty by keeping both the president and the Congress in check — even if it means they are sometimes at tension with each other.

President Trump’s emergency declaration would be viable, though probably unsubstantiated factually, if it did not involve spending money. But by spending money not unauthorized by Congress, he has failed to uphold the Constitution, which he has sworn to preserve, protect and defend.



https://www.lewrockwell.com/2019/02/andrew-p-napolitano/trumps-brazen-unconstitutional-overreach/

Chump is clueless when it comes to the Constitution.

The Judas goats are aware of the rule of law but consciously choose to ignore it.

Chump doesnt have the slightest idea as to how the rule of law works in America, couldnt care less.

Feinstein must have been overjoyed listening to this, probably shot dust into her Depends.


https://youtu.be/yxgybgEKHHI?t=40

[Superfluous Man]

Bull$#@!. The president doesn't need Congress' approval to exercise power granted to him by the Constitution, the power is his.

Sure he does. He needs Congress to give him the money for it. Every single time, for every exercise of every power, without exception. This is what the Constitution requires.


If Congress grants him the power in question, and it is not unconstitutional, he can exercise it without their pemission until they take it away by legislation passed according to the Constitution. If Congress gives power to one president, they give it to all of them.

But this instance with the wall is not a power that Congress granted him, at least not above $1.4 Billion. It is a power they deliberated about, negotiated with him, and voted on, determining that he could only spend that much. For him to allocate additional funding that Congress allocated to other things expressly not to be spent on this wall is not just to exercise a power Congress didn't give him, but to exercise power they deliberately voted against giving him in direct defiance of Congress's constitutional power over the purse.

Also, notice how for all this talk that you and others are making about Congress having given the president the power to do this, none of you can point to any legislation that Congress has ever passed that does that. Brianforliberty mentioned a section of the US Code that he had never read that contained nothing of the sort in it. Johnwk did a little better, but I'm not sure he read the codes he cited either, because they also had explicit stipulations that ruled out what Trump is doing.

Now here you with this "if Congress grants him the power in question." But can you point to any legislation where Congress granted him this power?

[acptulsa]

Prove that.

Prove he doesn't accept your convenient redefinition of the word 'invasion'? Seriously?

Tell me this. Did Hitler invade Poland? Did it involve sneaking in and cutting grass?


INVA'SION, noun s as z. [Latin invasio, from invado. See Invade.]
1. A hostile entrance into the possessions of another; particularly, the entrance of a hostile army into a country for the purpose of conquest or plunder, or the attack of a military force.

Did you think bolding and underlining the first eight words would cause us to ignore the rest? Do you really think sneaking in and making hotel beds fits everyone's definition of 'hostile'?

[Brian4Liberty]

Sure he does. He needs Congress to give him the money for it. Every single time, for every exercise of every power, without except. This is what the Constitution requires.

Cite where the Constitution says that.

If the DoD gets a budget of $100 billion dollars, does Congress need to specify how many pencils and desks they can buy or spend money on? How many pencils can Trump buy for the White House?


But this instance with the wall is not a power that Congress granted him, at least not above $1.4 Billion. It is a power they deliberated about, negotiated with him, and voted on, determining that he could only spend that much. For him to allocate additional funding that Congress allocated to other things expressly not to be spent on this wall is not just to exercise a power Congress didn't give him, but to exercise power they deliberately voted against giving him in direct defiance of Congress's constitutional power over the purse.

Also, notice how for all this talk that you and others are making about Congress having given the president the power to do this, none of you can point to any legislation that Congress has ever passed that does that. Brianforliberty mentioned a section of the US Code that he had never read that contained nothing of the sort in it. Johnwk did a little better, but I'm not sure he read the codes he cited either, because they also had explicit stipulations that ruled out what Trump is doing.

Now here you with this "if Congress grants him the power in question." But can you point to any legislation where Congress granted him this power?

Go debate Mark Levin, who was the source I was quoting. I’m not particularly interested in debating the details, as my position is that no President should be able to unilaterally declare national emergencies.

[Superfluous Man]

Cite where the Constitution says that.

"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” (Article I, section 9, clause 7)


If the DoD gets a budget of $100 billion dollars, does Congress need to specify how many pencils and desks they can buy or spend money on? How many pencils can Trump buy for the White House?

No. But they have the Constitutional authority to do that, or to leave it up to the president's discretion within whatever limits they set for the spending of that money.

In the case of Trump's wall, Congress didn't merely not give him more than $1.4 Billion, they deliberately refused to over the course of a lengthy well-publicized period of negotiation with him about it, the result of which was to allocate about $1.4 Billion and no more for a border fence to be built within certain limits they set.


Go debate Mark Levin, who was the source I was quoting.

What a surprise.

It would be easy to debate that idiot. But you're the one who's making claims here. Why make claims you aren't prepared to defend, and then just point to Levin like he's the Bible or something?


my position is that no President should be able to unilaterally declare national emergencies.

Well that's good. Given that belief, I don't see how you could disagree with what Judge Nap said in the OP.

[TheCount]

They didn't think that immigration in the absence of controls was an invasion and they didn't impose controls because the population was so small and the territory was so large that they thought immigration would be a good thing because the rest of the world wasn't so different from us regarding liberty but they foresaw the potential need to control immigration and built that power into the Constitution, they would most certainly have classified 20+ Million people entering in violation of restrictions we set as an invasion.

Your argument is nonsensical. If they agreed with your view of the world, then immigration at a time when the American population was so small would have been a larger threat, not a smaller one, because the political power wielded by each individual immigrant was vastly larger.



the rest of the world wasn't so different from us regarding liberty

You think that at the time of the founding of the country, people in the rest of the world were more free than they are now?


I know that you're just trying to shoehorn your standard culture argument in here, but it makes even less sense than normal. America's immigrants at the time were literal serfs and peasants coming from monarchies and dictatorships where they and people like them had zero political power and little freedom. This makes your usual "culture" argument even more plainly about some... other characteristics, shall we say, of the immigrants which were more similar to those of the "cultural Americans" of the time.

[Swordsmyth]

Prove he doesn't accept your convenient redefinition of the word 'invasion'? Seriously?
Prove that the founders had his definition in mind, I simplified things and proved they didn't.




Did you think bolding and underlining the first eight words would cause us to ignore the rest?
I specifically dealt with the rest.
"Whales are large animals, particularly the Blue Whale" doesn't mean that only Blue Whales are large.


Do you really think sneaking in and making hotel beds fits everyone's definition of 'hostile'?
Violating our immigration rules makes them hostile, stealing identities makes them hostile, committing crimes and then fleeing to Mexico to avoid punishment makes the hostile, voting in our elections and otherwise interfering in our politics makes them hostile, coming here with the intent to collect welfare makes them hostile.

[Swordsmyth]

Sure he does. He needs Congress to give him the money for it. Every single time, for every exercise of every power, without exception. This is what the Constitution requires.



But this instance with the wall is not a power that Congress granted him, at least not above $1.4 Billion. It is a power they deliberated about, negotiated with him, and voted on, determining that he could only spend that much. For him to allocate additional funding that Congress allocated to other things expressly not to be spent on this wall is not just to exercise a power Congress didn't give him, but to exercise power they deliberately voted against giving him in direct defiance of Congress's constitutional power over the purse.

Also, notice how for all this talk that you and others are making about Congress having given the president the power to do this, none of you can point to any legislation that Congress has ever passed that does that. Brianforliberty mentioned a section of the US Code that he had never read that contained nothing of the sort in it. Johnwk did a little better, but I'm not sure he read the codes he cited either, because they also had explicit stipulations that ruled out what Trump is doing.

Now here you with this "if Congress grants him the power in question." But can you point to any legislation where Congress granted him this power?
Congress granted him the money when they passed the emergency law.

[Swordsmyth]

Your argument is nonsensical. If they agreed with your view of the world, then immigration at a time when the American population was so small would have been a larger threat, not a smaller one, because the political power wielded by each individual immigrant was vastly larger.
No, low population density tends towards liberty and they were nowhere near having a high population density.
And as I said the rest of the world (particularly the parts that supplied most of the immigrants at the time) was not so different from us politically as it is now, most of the immigrants at the time of the founders were liberty oriented.





You think that at the time of the founding of the country, people in the rest of the world were more free than they are now?
Yes, especially those from Europe, they may have had more authoritarian government systems but their rulers didn't tend to micro-manage them as has become fashionable in modern times.




I know that you're just trying to shoehorn your standard culture argument in here, but it makes even less sense than normal. America's immigrants at the time were literal serfs and peasants coming from monarchies and dictatorships where they and people like them had zero political power and little freedom. This makes your usual "culture" argument even more plainly about some... other characteristics, shall we say, of the immigrants which were more similar to those of the "cultural Americans" of the time.
See above.

[TheCount]

Yes, especially those from Europe, they may have had more authoritarian government systems but their rulers didn't tend to micro-manage them as has become fashionable in modern times.

What universe is your alternate-reality freedom-version of the 1600s and 1700s from?

[Swordsmyth]

How would that affect their genetic-cultural voting habits, though, given that they had 0 political power?
I never said it was genetic and I told you they were more freedom oriented then as opposed to now, they were used to governments that had far less control of their lives.

[TheCount]

I never said it was genetic and I told you they were more freedom oriented then as opposed to now, they were used to governments that had far less control of their lives.
Religion and government were functionally one and the same, and every single aspect of the serf's life from birth to death was determined by government. In which ways were they more free? What about their life was less governed?

[Swordsmyth]

Religion and government were functionally one and the same, and every single aspect of the serf's life from birth to death was determined by government. In which ways were they more free? What about their life was less governed?
Everything you said is wrong.

[Superfluous Man]

Congress granted him the money when they passed the emergency law.

There does not exist any such law.

And you know this, as proven by your inability to find it, even though you keep claiming it exists, and keep getting asked to cite it, and keep being unable to.

If it exists, then cite the specific law, so we can actually check it and see where it says what you claim it does.

[johnwk]

Both of those codes specifically stipulate that the president's authority to authorize those uses of funds is limited to national emergencies that require the use of the Armed Forces.


I see you haven't been paying attention. President Trump has been using the military with regard to wall construction and repair, and last week order more troops to the border, one assignment involves construction and repair of the barrier/wall.


Try keeping up with what is happening before posting. The codes I posted,
See:
10 U.S. Code 2808 (https://www.law.cornell.edu/uscode/text/10/2808) and 33 U.S. Code 2293 (https://www.law.cornell.edu/uscode/text/33/2293),
contrary to judge nap's BS, do allow President Trump access to certain funds for the stated emergency.

JWK


The Democrat Party Leadership has been encouraging the current ongoing invasion of our southern border since 1985 when amnesty was granted to 2.5 million illegal entrants in return for a guarantee to build a wall and secure our border. And here we are today, no wall, but 10-15 million new illegal entrants and the invasion continues

[Superfluous Man]

I see you haven't been paying attention. President Trump has been using the military with regard to wall construction and repair, and last week order more troops to the border, one assignment involves construction and repair of the barrier/wall.


I have been paying attention. It looks like you misunderstood.

Yes, I know Trump has been using the military. But not to do something that only the military can do, which is what the codes you cited stipulate.

How do you know that the wall could be built by someone other than the armed forces? First, by all the border walls that have already been built by other agents. Second, by the fact that Trump spent so long negotiating for a budget that would fund construction of the very same wall by means other than use of the armed forces.

The only reason he's using the armed forces to do it is as a way to make it fit those codes (as I said in the post you just replied to).

[CaptUSA]

They didn't think that immigration in the absence of controls was an invasion and they didn't impose controls because the population was so small and the territory was so large that they thought immigration would be a good thing because the rest of the world wasn't so different from us regarding liberty but they foresaw the potential need to control immigration and built that power into the Constitution, they would most certainly have classified 20+ Million people entering in violation of restrictions we set as an invasion.

Just noticed I haven't negged your nonsense in awhile...

Are you seriously trying to "infer" what you think the Founders would have thought about this present situation to suit your own xenophobia? How convenient.

Tell us, what evidence are you using for this inference? About none, right??

[dillo]

Can he invade Mexico under the War Powers of the Executive and as the head of the military and have the mission be to build a wall?

[axiomata]

Can he invade Mexico under the War Powers of the Executive and as the head of the military and have the mission be to build a wall?

No

[Pauls' Revere]

[QUOTE=TheCount;6756401] I've read that there's some money that's been appropriated for military construction in Wisconsin and Missouri which could be diverted. How many billions of dollars do you suppose that the Navy spends on construction in Wisconsin and Missouri?

Future planning as that is where our new coastline will be after global warming.