ALSO SEE: Pelosi: No Wall Money in US Border Deal Talks

The National Emergencies Act Was Never Meant for Something Like Trump's Wall

By Gerald S. Dickinson, The Washington Post

31 January 19

The history of the law shows the White House would be misusing its powers.

ith the federal government now reopened, President Trump is threatening to invoke the National Emergencies Act as a lever to find money for the construction of a wall on the U.S.-Mexico border — a policy that Congress very clearly does not support. Soon after announcing Friday that he would sign legislation to fund the government for three weeks, Trump declared, “If I don’t get a fair deal from Congress … I will use the powers afforded to me … to address this emergency.” He says he has the “absolute right” to declare a national emergency and order the military to build the wall to stop the threat of “illegal immigration” in the country. But the real threat is the specter of a sitting president wielding emergency powers to implement a public policy he can’t persuade Congress, let alone the public, to support. The law Trump is threatening to use was never meant to allow something like this.

Throughout the mid-1970s, Congress debated whether to terminate certain authorities given to the president to declare a national emergency. In particular, U.S. involvement in Vietnam and Cambodia piqued the interest of several members of Congress, who demanded a special study of the consequences of terminating a 1950 national emergency proclamation regarding the Vietnam War. At the time, the nation had technically been under a state of emergency for more than 40 years. Those emergency powers were extraordinary: The president could, among other things, restrict travel, seize property, organize and control the means of production and assign military forces abroad.

For example, Franklin D. Roosevelt declared a national emergency to combat the Great Depression days after he took office. Harry S. Truman attempted to seize steel mills amid a strike during the Korean War. Richard Nixon invoked the power amid a postal workers' strike. A year later, Nixon declared a national emergency again to impose controls on foreign trade. Although Truman’s exercise of the emergency power was thwarted by the Supreme Court in Youngstown Steel v. Sawyer, the substance of the majority and concurring opinions offer useful insight into today’s debate about circumventing Congress to achieve a policy goal.

Justice Robert Jackson, for example, wrote an extraordinary concurring opinion in Youngstown. He looked to history as a road map for why restraints on executive emergencies powers were crucial to our constitutional republic. Germany’s Weimar constitution, Jackson wrote, was designed to secure civil liberties in the Western tradition, yet “the President of the Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seriously disturbed or endangered … in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President von Hindenburg to suspend all such rights, and they were never restored. …”

Likewise, Jackson noted that Britain went through both world wars under a “sort of temporary dictatorship created by legislation.” This, some argued, was the “high-water mark in the voluntary surrender of liberty.” But as Winston Churchill noted, the parliamentary regime “stands custodian of these surrendered liberties, and its most sacred duty will be to restore them in their fullness when victory has crowned our exertions and our perseverance.” In other words, Jackson was comforted by “parliamentary controls [that] made emergency powers compatible with freedom . . . only when control [of emergency powers] is lodged elsewhere than in the Executive who exercises them.”

Even the French Republic, which operated under a similar emergency regime called the “state of siege,” was cited as an example of why executive restraints are necessary. Jackson noted that the French had essentially secured limitations in that the emergency powers “could not be assumed at will by the Executive” but, instead, permitted only by parliamentary action.

To temper the potentially dictatorial powers available to the president, Congress stepped in to enact the National Emergencies Act to ensure that proper safeguards were in place to allow for congressional review when the president declared an emergency.

Sens. Frank Church (D-Idaho) and Charles Mathias (R-Md.) were especially interested in getting the act passed as soon as possible. Their bipartisan efforts stand in sharp contrast to today’s hyperpartisan political climate over the border wall fight.

Sen. Lindsey O. Graham (R-S.C.) recently called for Trump to invoke the powers no matter how the shutdown was resolved. Rep. Mark Meadows (R-S.C.) said, “Obviously, a national emergency declaration is an option but it should be the last option used.” Rep. Mo Brooks (R-Ala.) supports declaring an emergency to build an international wall simply because the “United States code says so.”

As co-chairs of the Special Committee on the Termination of National Emergencies, Church and Mathias led a bipartisan effort to study the history of national emergencies. They reported grave concerns about the powers granted to the executive before then. Their objection to granting “absolute” power was founded on legitimate principles of limiting executive powers and, at the very least, giving Congress oversight authority when the president invoked the powers.

It’s clear from the congressional record that Church and Mathias were acutely aware of and sought to prohibit a future president from taking advantage of the emergency powers for partisan and policy purposes. They worked for several years to persuade colleagues to insert provisions into the bill to ensure that Congress would exercise continuing oversight of any future emergencies. Although congressional testimony and legislative history is not binding law, they serve as a useful window to peer into statements made long ago by those who once debated the very law that has generated so much controversy among members from Congress — and the public — today.

Perhaps most enlightening is Church’s testimony during a hearing before the Committee on Government Operations on Feb. 25, 1976. There, he explained that the president “should not be allowed to invoke emergency authorities or in any way utilize the provision of [the National Emergencies Act] for frivolous or partisan matters, nor for that matter in cases where important but not ‘essential’ problems are at stake.”

Trump’s threat to declare an emergency is an arguably “frivolous” and “partisan” matter unconnected and unrelated to defending the country from an “essential” problem. Illegal immigration across the southwest border is an “important” problem to address — and Congress has already given, in the Secure Fence Act of 2006, the secretary of Homeland Security the power to take action that is “necessary and appropriate” to secure the border with fencing and patrol. In fact, the offer from Democrats during negotiations to reopen the government to approve additional funding for border security advances prior efforts by Congress under the administrations of George W. Bush and Barack Obama.

But the situation along the border arguably does not rise, in the words of Church, to an “essential” problem now, nor is the construction of a physical contiguous border wall a necessary solution. (It’s hard to take seriously the idea that a years-long construction project is an emergency action, if only because it wouldn’t have any effect until well into the future.) Illegal crossings are at the lowest ebb since the Clinton administration. Although Trump cites migrant caravans as evidence of an emergency, those caravans are not crossing the border illegally but, rather, arriving at legal ports of entry to request asylum, as the law permits. Half of the undocumented immigrants in the United States arrive legally through airports but then overstay their visas. Likewise, there is simply no empirical evidence to suggest that thousands of terrorists are crossing the border illegally.

All this strongly suggests that threatening to invoke an emergency to build the wall is a “frivolous” decision influenced by partisanship, not by responding to an essential problem.

Church’s parting words in his 1976 testimony are noteworthy: “Congress should be forewarned that it is inherent in the nature of modern government that the Executive will seek to enlarge its power in small ways and large.” That’s exactly what Trump is trying to do today.

46 Ways a BIG Green New Deal Can Raise the Spirit of Godmother Eleanor

By Joel Segal and Harvey Wasserman, Reader Supported News

31 January 19

he Green New Deal’s demand to make our energy system 100% renewable has become central to the new American Dream. It’s essential to our survival, both economically and ecologically.

But the original New Deal, whose Godmother was Eleanor Roosevelt, embraced a broad vision of remaking society as a whole. It aimed to end poverty, win social justice, promote the arts, and much, much more.

So here’s a partial list of New Deal-style changes to create a fair, decent, sustainable world. We welcome your own suggestions at www.solartopia.org.

1. All power generation must come, no later than 2030, from 100% renewable sources, primarily wind and solar, but also from ocean thermal, geothermal, wave and tidal technologies, eco-friendly biomass, and more.


2. All such facilities must be produced and sited in harmony with the natural and socially-just human environment.


3. Environmentally sound batteries must be deployed to guarantee continuity of supply, with massive increases in funding for research into new technologies based on cheap, widely available, eco-friendly materials.


4. Deployment of these large-scale batteries must be accompanied by a global infrastructure established to collect, reuse, and recycle all old batteries of any and all sizes, keeping them out of landfills, where they’re an eco-disaster.


5. A massive push for increased efficiency, as with LED lighting, must be rapidly deployed to minimize future energy consumption while enhancing output.


6. This new green energy system must be structured to ensure maximum local ownership and control through the use of micro-grids and other community-based networks, to maximize the democratization of our power supply.


7. Our entire transportation system must be converted to electric power, with a major new grid of public-owned mass transit and commuter bike paths to ease the crisis of traffic jams plaguing our cities.


8. The production of gas-fired internal-combustion vehicles must be banned by 2030.


9. All existing fossil and nuclear fuel burners must be shut to counteract the climate chaos. Our energy system must be 100% clean and renewable by 2030.


10. All residual fossil/nuke wastes must be managed with minimal damage to the eco-human future, especially as concerns the potential use of radioactive waste to make nuclear weapons.


11. The Solartopian transition will create millions of jobs to be managed through a Green Jobs Corps that will provide retraining for at least three million workers and guarantee these jobs are unionized, well-paid, and open to all.


12. While this conversion from obsolete fossil/nuke generators to green renewables will produce massive wealth, its interim up-front conversion costs will be covered with savings redirected from the imperial military.


13. The transition will be guided by a “Brain Trust” of experts, activists, and administrators appointed by the Congressional Progressive Congress, operating through a Green Marshall Plan, Green Trust Fund, Green Labor Transition Fund, and other “alphabet agencies” to coordinate the various programs.


14. A global campaign to collect, recycle, and reuse the countless tons of plastics spewed throughout our planet must be deployed in concert with a restructuring and ultimate phase-out of plastics production in a way to create maximum energy recapture and jobs production.


15. American agriculture must transition from toxic pesticides, herbicides, and fertilizers into organics that will sustain a food supply that’s cleaner, cheaper, more reliable, and more abundant than today’s chemical-based disaster.


16. The original New Deal’s Civilian Conservation Corps planted some 32 million trees; climate scientists have proposed planting six billion to serve as our best carbon sink, creating countless jobs along the way.


17. Small-scale family/community-based farming must be encouraged to the greatest extent possible in place of environmentally destructive agribusiness.


18. A national health system – “Medicare for All” – must be installed to guarantee all Americans adequate health care coverage.


19. Such a program will create jobs while saving American society trillions in terms of reduced delivery costs, improved health, lowered anxiety, extended lifespans, reduced bankruptcies, and much more.


20. A national program to reduce and ultimately eliminate residual medical debt must be enacted.


21. A national program to rebuild and reboot our educational system must include hiring at least a million new teachers to reduce class sizes as much and as soon as possible.


22. Our schools must be upgraded, removing lead pipes and asbestos while installing efficient lighting, insulation, and rooftop solar panels, saving billions annually.


23. All community college tuition must be immediately eliminated, followed by all tuition at all other federal- and state-run institutions of higher learning.


24. A national program to reduce and ultimately eliminate residual student debt must be enacted.


25. Cannabis in all forms, including industrial hemp, must be wholly legalized.


26. All citizens incarcerated for nonviolent cannabis-related offenses must be immediately released and their records expunged.


27. All private prisons must be taken over by the community, with an end to internal violence, involuntary servitude, sexual abuse, and administrative corruption.


28. All homelessness must end with sufficient affordable (eco-friendly) housing, social and psychiatric counseling, general health care, and other necessary programs for the mental, physical, and other health issues causing millions of Americans (many of them veterans) to be without decent shelter.


29. All Americans who retire or who face special challenges should receive a minimum of $3,500/month through Social Security, SSDI, or unemployment payments.


30. A Federal Unemployment Insurance Fund at the Department of Labor will strengthen support and retraining programs for those losing their jobs in the transition to the Solartopian economy.


31. A “Federal Resiliency/Adaptation Fund” will work through FEMA to help communities devastated by global climate change.


32. All US troops must come home. Our overseas bases must be sold and the empire dissolved. US military and covert agencies must refrain from further invasions of foreign countries and manipulations of their elections and other governmental operations – except in cases of mass murder and eco-destruction when joined by other forces in conjunction with a legitimate vote of the United Nations General Assembly.


33. Funds thus saved will provide all Americans with the basics for a decent life, i.e., food, housing, clothing, medical care, transportation, and education.


34. All US elections will use hand-marked, hand-counted paper ballots.


35. Open-source electronic machines may be used to print ballots on demand at designated precincts, creating a digital image of all such ballots which can be electronically counted and recounted while preserving the original ballots for recounts, which shall be conducted freely and openly.


36. All Congressional, state, and local legislative districts shall be drawn by independent, nonpartisan commissions.


37. As per the Tillman Act of 1907, no corporation may contribute funds directly or indirectly, in cash or in kind, to any candidate running for public office.


38. Individual contributions, in cash or in kind to any candidate for public office must be limited to $27.


39. All discrimination based on race, gender, sexual preference, religion, different abling, or any other diverse aspect of the human panoply must end.


40. The Progressive Caucus of Congress will establish a “Brain Trust” to engineer the Green Marshall Plan, Green Trust Fund, Green Labor Transition Trust Fund, and other agencies needed to administer the above.


41. The Green Marshall Plan will pay for the upfront costs of building energy-efficient and solar-powered affordable housing and buildings to address the U.S. homeless and affordable housing crisis. We need to build about 7 million units of affordable housing, built by non-profit developers, or by the City entities such as Housing Authorities or other City housing agencies.


42. The dedicated Green Trust Fund will have an ironclad revenue stream like the Medicare and Social Security Trust Funds to fund the Green Marshall Plan and Green New Deal, reverse the death tax (reinstate taxes on wealthy estates upon death – we lost hundreds of billions of dollars), reverse the Trump, George W. Bush, and Reagan tax cuts for the wealthy, tax millionaires and billionaires, levy a federal tax on e-cigarettes, end corporate welfare and off-shore bank accounts, levy a luxury tax on foreign automobiles such as Mercedes Benz, BMW, and yachts.


43. The Green Labor Transition Fund of the Department of Labor will pay the salaries, housing, and benefits, for up to two years, for workers from the fossil fuel industry who will be trained and rehired in the new green economy.


44. The Great Clean Renewable Energy Transition Plan will become a federal bill, accompanied by Hill briefings, town hall meetings, floor statements, and one-minutes on the House Floor. We need 170 co-sponsors by June 1, 2019, and a hearing and mark-up on the bill by June 1, 2019. We want the bill passed in the next two years.


45. Getting this radical, transformative Green New Deal bill through Congress will demand a WWII-scale mobilization with a politically and strategically coordinated united front, inside and outside of Congress, and an unprecedented level of solidarity. A “critical mass” and “grand strategy” to defeat the fossil/nuke industry, Wall Street, the big banks, and “elected” officials owned by these corporate behemoths is a heavy lift. But there are more of us than them! And we have no choice.


46. A massive new Green Arts Fund will sponsor a rebirth of public creativity, funding murals, plays, music, films, books, radio, TV, and internet works to echo the PWA, WPA and other public arts programs of the original New Deal, with enhanced funding for NPR, PBS, and other public news, information, and creative arts endeavors.

There is much more. We look forward to your Green New Solartopian suggestions at www.solartopia.org.

Joel Segal is National Coordinator of the Justice Action Mobilization Network and former Senior Congressional Staffer for Rep. John Conyers. Harvey Wasserman’s Green Power & Wellness Show is podcast at prn.fm; California Solartopia is broadcast at KPFK-Pacifica, 90.7 fm, Los Angeles. His Life & Death Spiral of US History: From Deganawidah to Trump to Solartopia will soon be at www.solartopia.org.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.