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HORIST: The declaration of a national emergency is a problem for Constitutionalists

HORIST: The declaration of a national emergency is a problem for Constitutionalists

Whether it was due to out-of-sight crumbling of support from Senate Republicans or miscalculation on the part of President Trump, the effort to fund the wall came suffered a serious setback with the bipartisan agreement coming out of Congress – even though it had to be with Trump’s okay.

One of the major unanswered questions is why Trump ended the government shutdown after 35 days by signing the two-week funding bill.  The tide of public opinion and the resolve of several congressional Democrats was shifting.  The President was in the power position as long as he stayed the course AND if he could trust Senate Republicans to stave off a veto override.  Eventually, the Democrats would have had to cave.  It was virtually pre-ordained.

One explanation may be that Trump was privately told that a sufficient number of Senate Republicans would cross over and support a veto override.  That seems unlikely but appears to be the only rational explanation for Trump caving when he did.

He could have held to his $5.7 billion demand and let the Democrats cause a second shutdown – but sequels rarely do as well as the first-run version.  He could have held to his $5.7 billion and let negotiators accept it or fail to reach an agreement – and lay the blame on the second shutdown on the obstinance of Speaker Nancy Pelosi. She was already looking more and more like the problem.

Senate Majority Leader Mitch McConnell said nothing would be agreed to unless it would be signed by the President.  That means that the bipartisan agreement had to have the tacit support of Trump — even if he now claims he does not like it.   He could have stopped it.  Why that did not happen is a mystery, but it may again have to do with the knowledge that his veto would not be supported in the Senate.

Division within the Republican Party is not something new.  It is as common as that political solidarity that reigns supreme in the Democratic Party.  It is the reason why even when the GOP held the Senate, the House and the presidency, they got blocked by the unbroken ranks of Democrat opposition – especially in the Senate, where Democrats retained the power to block super-majority votes and engage in filibusters.  Now that Democrats have the House, their power is enhanced exponentially.

In terms of leading a unified government for two years, the Republicans were … well … pathetic.  They were tossed around by the Democrats and the incredibly biased media like rag dolls.  They allowed the unprecedented – and dangerous to the Republic – resistance movement to roll over them like a tsunami.  While they had the better policies, Republicans lost on healthcare.  They lost on selling the benefits of the tax cut.  They lost on dealing with the Russian investigation.  They lost on most foreign policy initiatives.  And consequently, they lost BIG in the midterm election.  There is hardly a single issue that Trump and the Republicans have advanced that has the support of most of the people.

And now cometh the declaration of a national emergency to gain money for physical barriers along our southern border – the proverbial wall.  It is a desperation move that should have been avoided.  Yes, there is a crisis on the border.  Just because the number of those arrested at the border has decreased, does not mean 700,000 unvetted new migrants entering America each year is acceptable – and not a crisis.  The Democrats argument that there are few illegal crossings now than ten years ago is irrelevant.  There are far too many today.  The fact that most illegal drugs enter through ports of entry is also irrelevant.  Too much still comes across unprotected portions of our open border.

The reason the emergency declaration is not the best solution is that it well may be unconstitutional.  The Supreme Court said as much when President Truman tried to nationalize the steel industry during the Korean War – and on other occasions where the justices stepped in.  Presidents attempting to expand their executive powers is nothing new, but it should be resisted in favor of that all-important separation of powers.  A president’s propensity to appropriate money – and even declare war – has already been abused too often.  It needs to be reined in.

But here is the rub.

Congress gave presidents the power to declare national emergencies for damn near anything.  We are currently living under 31 national emergencies declared by presidents as far back as Jimmy Carter.  In fact, in 2011 President Obama issued one to address the inflow of illegal drugs – and Trump may use that one in addition to the new one to secure border barrier funding.

The question that may have to be decided by the Supreme Court is whether the Trump declaration is unconstitutional OR … is the 1970 law that gave such authority to a president unconstitutional.  That would not only limit a president’s ability to declare national emergencies in the future, but make all those in the past null and void.  While Democrats may challenge only Trumps declaration, it is not impossible to imagine that some libertarian group may challenge the entire law.

It would seem that under the law, Trump is on solid ground in his authority to declare a national emergency.  So, the only way to stop him may be to have the law that empowers him declared unconstitutional.

President Obama was correct when he said that he did not have the power and authority to issue an Executive Order to defend the DACA Dreamers from deportation – that was before he did just that.  That order is still in question in the federal courts.  Trump, who said he favors keeping the Dreamers in the country, said that he did not have the power and authority to extend Obama’s improper EO – and he was correct.  It is the job of Congress … period.

Trump’s declaration of national emergency resolves nothing at this moment.  It will prolong a national debate that neither side can fully win.  The process will take time.  Even with the declaration, not one inch of a southern border barrier – other than that authorized in the current bill – is likely to be constructed before the 2020 election.  It will suck the political oxygen out of the room for any of the more significant accomplishments of the Trump administration.

The debate over whether there is a crisis, an emergency or even a problem at the border will rage on despite the fact that both sides are pretty much locked into their position on that question.  We will be subjected to a prolonged debate with no more meaning that arguing over the number of angels on the head of a pin.

Trump did not help himself by caving during these negotiations, but the harm to his re-election will be worse if the only two stories in the public sphere are border walls and investigations.  He needs to re-focus public attention on more positive and more important issues.

This does not mean he should abandon immigration reform as one of those important issues.  The Democrats are painted in a corner on immigration – on DACA, on chain migration, on birth-right citizenship and on catch-and-release.  Those are important issues to be debated and resolved – and Trump did a pretty good job of foretelling that debate in the future.  They are issues in which Trump and the GOP can take the high ground –  as the wall issue weaves its way through the courts and Congress.

The stand-off between Trump and the Congress cannot be settled by unilateral action on the part of the President.    It will be challenged in several federal district court cases and any declaration could be terminated by a vote of Congress.  It is certain to pass the House, but its future in the Senate again depends on a hand full of Republicans.  IF – and that is a big IF – there were enough GOP senators to override a veto then a vote to block Trump’s declaration is possible.  If there were not, then the declaration will stand.

Under the law, Trump clearly has the power to declare a national emergency for any reason he, as President, deems appropriate.  If the law is not struck down, it is unlikely that the declaration will be.

My more libertarian side has me thinking that Trump’s declaration should go forward unless the High Court strikes down the enabling law.  For those of us who recognize the problem of our open borders and yet value the importance of the Constitution, it is not a happy choice – especially when you are confronting a partisan political movement that does not give a rat’s ass about the Constitution.

So, there ‘tis

About The Author

Larry Horist

So,there‘tis… The opinions, perspectives and analyses of Larry Horist Larry Horist is a businessman, conservative writer and political strategist with an extensive background in economics and public policy. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman. He has served as a consultant to the Nixon White House and travelled the country as a spokesman for President Reagan’s economic reforms. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress. Horist has lectured and taught courses at numerous colleges and universities, including Harvard, Northwestern, DePaul universities, Hope College and his alma mater, Knox College. He has been a guest on hundreds of public affairs talk shows, and hosted his own program, “Chicago In Sight,” on WIND radio. Horist was a one-time candidate for mayor of Chicago and served as Executive Director of the City Club of Chicago, where he led a successful two-year campaign to save the historic Chicago Theatre from the wrecking ball. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He is praised by readers for his style, substance and sense of humor. According to one reader, Horist is the “new Charles Krauthammer.” He is actively semi-retired in Boca Raton, Florida where he devotes his time to writing. So, there ‘tis is Horist’s signature sign off.


  1. David DeLuca

    Excellent analysis! Right on target! Too many people do not understand the severity of these decisions and the impact on our Republic! Thank you for your insight!

  2. Eric Fredrickson

    The argument is off on several points: One, the Republicans do NOT want what is right for the Republic. They only want to stay in power, kissing the Democrat’s asses (an ironic double-entendre), who, due to their iron-fisted grip on solidarity (much like Nazis, Communists, and other such fascist dictators). They were originally a group of slave-owners, wanting those under them to remain, ignorant, poor, and dependant upon their graces. They have not changed, except that they want ALL Americans to be ignorant, poor and dependant on their generousity.

    Two, there is always an ass or three in Republican clothing willing to sell out the President, or what’s good for America, to curry favor with the Democrats.

    Three, there is the nebulous Deep State, the political corruption in the bureaucracies, including the NSA, the FBI, the CIA, etc., who like their untouchable power and will do anything to destroy anyone who tries to stop them, or bring them to justice. Look at all the illegalities that Hillary, Sztrok, Comey, Mueller, Holder, Rosenstein, McCabe, and many, MANY others, up to and including Obama himself.

    Four, we no longer have justice for everyone; Democrats are held to a vastly different level of justice. Look at Hillary: She broke so many, many laws, I’m not sure where to start, but her blatantly ILLEGAL unsecure State Department server, stored in a private citizens’ basement bathroom closet, served one primary service. And that was to allow unfettered access to national secrets by foreign entities for a healthy donation to the Clinton Foundation. Treachery for money.

    Last, but most likely, the biggest reason: Trump. An outsider in the political arena, a TRUE maverick, a paradigm-shifter. He has single-handedly changed the was politics, and our government, is done, and handed, or returned, if you will, the power back to the people. His seemingly inappropriate and innane tweets are his only means to keep the American People informed as to what’s happening, to educate the public. It’s bold, innovative, unorthidox, but highly effective. And because he’s bypassing the Censors, i.e., the MSM, they hate him because he’s calling them for what they are: Fake News.

    Getting back to the main point of this article, Trump did what was unorthodox – he stopped the shutdown, because it wasn’t doing much good, and would also detrimentally affect the Superbowl, which was coming up in just over a week. He also did it to show that he was the willing one, and put the ball in the Democrat’s court, and they, as usual, screwed it up by showing themselves to be petty and powermad. His agreement to the budget bill not only gives him some money to start the border fence, which will take a year to spend, which also buys him time to accomplish something while the Democrats challenge him in the courts, which most likely, will end with Trump being determined that he has the right to declare a national emergency and utilize such funds that are at his disposal to fix the border.

    The author made a egrecious error in declaring the President has no right to declare a national emergency: It is stated in the Preamble that “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Establish Justice; Insure Domestic Tranquility; Provide for the Common Defence; promote the General Welfare; and Secure the Blessings of Liberty to Ourselves and our Posterity – these are important. How, pray tell, can you establish Justice when illegal immigrants can live in ‘sancuary cities and states’, rob, molest, rape and kill American citizens with impunity, only to be captured, sent back to their home country, only to return in a few months to do it again? Where’s the justice in that? The same goes for Domestic Tranquility: How can you have that when not only criminals, as well as drugs to enslave thousands of American citizens, and terrorists sworn to destroy America and our way of life, are pouring over our borders with little to no restrictions? How can you defend the United States, when drug dealers, criminals, and even terrorists can freely and with impunity cross our southern border with nary a hinderance, because the Democrats deemed that they need more of the dependent class to vote for them, and clean their toilets on the cheap? And how can you promote the general welfare, which is to help all Americans to gain wealth, be happy, safe and healthy, when our infrastructure is overwhelmed with all of these uneducated, sickly, dangerous people as well as terrorists, flowing over our borders? God’s Blessings of Liberty flow from promoting the general welfare, for ourselves and for our posterity, i.e., our children, grandchildren, etc. You cannot have that when all of this trouble is freely crossing the border, with most, if not all, have the intention of destroying America and our way of life. That’s why, for several decades, we had strict restrictions on immigration – to allow the immigrants to be assimilated into our culture. After the Kennedy’s opened the Pandora’s Box of immigration wide open in the 60’s, a significant number of immigrants have not only not assimilated, but joined into groups whose sworn duty is to tear America apart by factioning us into groups, or overthrow parts of our country to revert back to Mexico (ever heard of RAZA?).

    So, yes, the President, whose Oath to Office is to “preserve, protect and defend the Constitution of the United States.”, has every Constitutional Right to declare an emergency and use what funds are neccessary to secure the southern border. Our only other option, aside from letting our country become an open, third-world craphole, is to declare open war on Mexico, and then territorialize it. The southern borders of Mexico is considerably shorter (1952 mi vs 697 mi), thus easier to control. This is NOT a pleasant option, in any way.

    • Lovette P Streets

      Eric Fredrickson’s response is absolutely correct. Perhaps HE should argue before the SCOTUS when the lawsuits are presented to it against President Trump’s action to secure our border!

  3. Lovette P Streets

    Great article, and superb response by Eric Fredrickson (who perhaps should be enlisted to argue before the SCOTUS when the President’s adversaries file their lawsuits and said litigation gets up to our highest Justices!) Of course, he won’t, but maybe Jay Sekulow will. He is quite comfortable before the SCOTUS, and knows Constitutional law. I would trust him to take on this fight.


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