I don't think Trump's emergency declaration is a slam dunk defeat in the courts.

[louis c]

Last edited Sun Feb 17, 2019, 04:25 PM - Edit history (1)

As I understand the 1976 law that Congress approved allowing the President to declare a national emergency, it needs no ratification from Congress. Congress can, however, vote to disapprove and thus nullify the declaration by the President. Here in lies the rub. Both branches must vote disapproval by a veto proof majority. The emergency declaration is treated just like any other bill in Congress. This is a flaw in the original legislation, but it's in there.

As a result, if the House votes to disapprove, even by two thirds, but the Senate fails to get 67 votes after the anticipated veto, the emergency stands, theoretically.

Now, the debate will be over whether or not the emergency is credible on its face. I'm afraid the court (especially the Supreme Court) may fall back on the position of Congressional Intent at the time of the legislation. They may find that a Congressional remedy exists, but that it failed using the rules set up by Congress in the original bill created in 1976.

I hope I'm wrong. But I am a little worried.

[RockRaven]

1. I think the courts won't touch the declaration of an emergency itself, just the actions taken

After all, there is a remedy in place to deal with the declaration itself, and Congress could, in theory, end the declaration if they feel the executive's judgment is in error.

But I suspect the courts will intervene in terms of whether or not the executive has the authority to act in the manner which the Trump administration will try to act based upon the declaration and existing laws. An there we are almost certain to get a mixed bag of results varying based on the plaintiffs, the actions being contested, and the districts/circuits involved. I expect SCOTUS will try to decide any case they receive very narrowly, because they can foresee a very different set of emergency declaration cases coming to them in a couple of years (i.e. climate change, vaccine mandates, gun violence) if they issue a very broad, sweeping opinion on POTUS's unfettered powers in this arena.

[ripcord]

6. Congress erred in not defining a national emergency

[Iliyah]

2. GOP senate is stacking the courts with RWers

who don't know the Constitution nor care about democracy, but I believe they will learn the hard way tho if they value their livelihood and their families.


Plus this would set a precedence for future "legal" Presidents.

[California_Republic]

3. I agree

I agree. Congress granted that authority and now we’re arguing about semantics.

The real recourse is to re-write the law

[louis c]

4. and I agree with you...

...the original law is flawed. The law should read that a President can call a national emergency, but that declaration must be ratified by a majority vote in the House and the Senate. After all, by definition, an emergency is nearly universally recognized and should not require two thirds of both branches to overturn.

Like so many of our laws, they assume a normal person who is working in the best interest of the country is in charge. After Trump, all our laws will have to be revamped so that a treasonous, coward, con-man can't run this great nation into the ground. We cannot take anything for granted ever again.

[EX500rider]

5. With 31 other "National Emergency's" in effect I think it will be a uphill fight also:

Most of those don't seem like "National Emergency's" either to me.

https://abcnews.go.com/Politics/list-31-national-emergencies-effect-years/story?id=60294693

[Runningdawg]

7. The best plan of action is to keep it tied up in courts as long as possible.

[Cuthbert Allgood]

8. He said in his press conference that it wasn't an emergency.

That is going to hurt him.