Showing posts with label rule of law. Show all posts
Showing posts with label rule of law. Show all posts

Sunday, February 17, 2019

Defend the Constitution and Rule of Law, Oppose the President's Emergency Declaration for Border Wall

I joined the U.S. Marines Corps and became an attorney to defend and protect the Constitution. There's never been a question in my mind that the principle of the rule of law over the rule of man is worth fighting for and critically important to the continued success of our nation. No one can ever be above the law - not even a president. When I served for two decades as a Westchester County Legislator, I believe my colleagues on both sides of the aisle respected my commitment to always following the County Charter and other laws.

I now watch our current politics with disgust as Democrats and Republicans regularly promote the party line over the rule of law. This is perfectly illustrated by the failure of Republicans in Congress to oppose President Trump's actions on Friday. He signed the budget continuation to avoid another federal shutdown, but immediately followed that with the signing of a "Declaration for a National Emergency" to build a wall along our southern border with funds never approved by Congress. I'm not addressing the merits of the border wall here, but I do believe this emergency declaration will be blocked in the federal courts.

It's well-established that the Constitution requires all spending bills to originate in the House of Representatives. The spending bill compromise last week only provided $1.375 billion for another 55 miles of the border wall. Therefore, the President's appropriation of $8.1 billion for said wall in the emergency declaration is unconstitutional because it violates the constitutionally mandated separation of powers.

President Trump has taken an unconstitutional and illegal act to use the military to seize land and build a wall without proper congressional appropriation. This must be recognized as a historically bad and dangerous precedent for future disputes between ANY President and Congress. Remember that in the Presidential Oath, President Trump swore that he “will to the best of his ability, preserve, protect and defend the Constitution of the United States,” and he has certainly violated that commitment here.

For an excellent summary of legal problems with the emergency declaration read, Prof. Ilya Somin's posts, The Perils of Trying to Use Emergency Powers to Build Trump's Wall, and Donald Trump can call a 'national emergency,' but that doesn't mean he can build the wall where he points out the requirement for Congressional approval before all this land can be taken by eminent domain:

"Even if the president can use emergency powers to get funds, that does not mean he can seize property by eminent domain. The Supreme Court has long held that the use of eminent domain must be expressly authorized by law. No emergency law expressly permit the use of eminent domain for border walls not otherwise authorized by Congress.

Building Trump’s wall requires using eminent domain on a massive scale. A third of the needed land is owned by the federal government. The rest would have to be taken from private owners, Native American tribes and state governments, many of whom are unlikely to sell voluntarily.

The result would be one of the largest federal condemnations in modern U.S. history. In Texas alone, there are almost 5,000 privately owned lots in the likely path of the wall. Securing the land and building on it is likely to be costly and time-consuming. Construction and legal battles over compensation can drag on for years."

I consider myself to be a constitutional conservative, so I respect and support the separation of powers set forth in the Constitution, and if you consider yourself a constitutional conservative, you must oppose the President's emergency declaration.

Let's be clear, had a Democrat president signed a similar unconstitutional emergency declaration, every Republican in Congress would be criticizing it with every fiber in their bodies. If they don't oppose the Trump decalarion, they have no credibility left.

Republicans supporting Trump's emergency declaration don't understand (or are intentionally ignoring) how much it violates decades of core Republican legal and constitutional principles. Most importantly, if I'm incorrect and the Trump emergency declaration somehow survives legal challenges, then mark my word, the same Republican elected officials supporting Trump's emergency declaration now will be screaming from the mountain tops when a future Democrat president uses this bad precedent for other unconstitutional actions they disagree with by using emergency powers, and a perfect example could be the Green New Deal.

Every American should oppose this emergency declaration on constitutional grounds, and that especially includes every Republican in Congress who claims to be a constitutional conservative.

Jim Maisano