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\begin{document}
{\parindent0pt\obeylines
Holden Rohrer
Markley
INTA 1200
30 Sep 2020
}
\centerline{\large\bfseries Emergency Powers Assignment}
% The question
\iffalse
Congratulations! You are now an advisor to the President. Your first
job is a difficult one, as you must provide advice to the President on
whether he should use his national emergency powers for the building of
a border wall to deal with immigration. President Trump is likely to
use Title 10 of US Code, Section 2808 which states the following:
"(a) In the event of a declaration of war or the declaration by the
President of a national emergency in accordance with the National
Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed
forces, the Secretary of Defense, without regard to any other provision
of law, may undertake military construction projects, and may authorize
the Secretaries of the military departments to undertake military
construction projects, not otherwise authorized by law that are
necessary to support such use of the armed forces. Such projects may be
undertaken only within the total amount of funds that have been
appropriated for military construction, including funds appropriated for
family housing, that have not been obligated.
(b) When a decision is made to undertake military construction projects
authorized by this section, the Secretary of Defense shall notify, in an
electronic medium pursuant to section 480 of this title, the appropriate
committees of Congress of the decision and of the estimated cost of the
construction projects, including the cost of any real estate action
pertaining to those construction projects.
(c) The authority described in subsection (a) shall terminate with
respect to any war or national emergency at the end of the war or
national emergency."
Your job is to provide him with the guidance on the following three
questions/issues:
1) Does a national emergency exist? (Make sure to provide justification
for your answer)
2) What are the potential negatives from declaring a national emergency?
3) Provide a final recommendation.
You may use outside sources in the construction of this answer, however,
must properly cite your sources and materials. When citing please use
parenthetical citations and a work cited. Each answer to each numbered
question should have no more than 150 words.
\fi
President Trump likely does have the power to declare a national
emergency, because there is precedent treating prevention of ongoing
non-military criminal activity as a national emergency. Clinton, in
1995, declared a national emergency on a similar basis: ``The National
Emergency\dots was declared after increased reports of drug cartels
laundering money through American companies'' \autocite{ABC}. The
exceptional pieces of his national emergency deal more with its
implementation and domestic effects. One of the possible challenges is
on the basis of Posse Comitatus, \autocite[6:55]{MSNBC} which ``outlaws
the willful use of any part of the Army or Air Force to execute the law
unless expressly authorized by the Constitution or an act of Congress''
\autocite[2]{FAS}. Based on attempts to integrate this funding into the
budget and now redirecting money from other programs, this appears to be
an attempt to circumvent the legislative process rather than address an
immediate emergency, which reduces the legitimacy of this move.
Declaring this specific national emergency will create a precedent in
one direction or another: if it goes unchallenged in the courts, this
would mean that the executive has barely checked power---only against a
two-thirds majority in both houses \autocite{NYTimes}---to reallocate
budgets on a unilateral basis. This will either create a dangerous
position for Republicans when a Democratic president goes into office
with the power to circumvent Congressional budget decisions. If the
court rules against the constitutionality of this decision, then the
power of the executive through the National Emergency Act will be
reduced. There is, however, a third possibility, Congressional action.
There is already majority bipartisan opposition in both chambers, but
there isn't a supermajority. Members of Congress attack the legitimacy
of this order, saying ``The House and Senate resoundingly rejected the
president’s lawless power grab,'' \autocite{NYTimes} and if their
opposition does succeed in rejecting this national emergency, future
presidents will also likely have less National Emergency power because
Congress would be comfortable with blocking it.
I don't believe this Proclamation will have much legitimate effect
because 20 states' litigation against this order diverting
state-destined funds \autocite{NYTimes} along with Congress using the
Budget to discontinue this allocation of funds
\autocite{WashingtonPost}. This is a good electoral move for Trump, so
viewed as a declaration of support for this policy in an attention-%
grabbing move to mobilize his base, it will probably pan out, even if it
is ultimately declared illegitimate or unconstitutional.
\printbibliography
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