As the second government shut down in as many months looms ever closer, (Friday is the deadline) Individual I comes closer to doing something entirely illegal: ordering the military to build his stupid wall under a declaration of national emergency. Besides poorly imitating the career paths of past fascist dictators, there is one major problem for him: ordering the military to enforce domestic law is illegal. Congress has to expressly authorize use of the military to accomplish domestic policy. The prohibition makes it a federal crime for anyone using the Army or Air Force (and presumably the Navy too) to execute domestic law. The 1956 statute is rooted in a Reconstruction era provision made law in 1878. Another statute from 1981 going back to 1807 prohibits any military member from search, seizure, arrest or similar activity without express Congressional authorization. Congress passed a repeal of a sweeping exception allowing the use of the military in natural disasters where a national emergency was declared in 2008. Small exceptions to the general rule do exist: the Coast Guard can legally exercise police powers in the territorial waters of the United States, but not along the Mexican boarder. Any claim by Hair Further that terrorists are crossing the southern border to make use of a terrorist exception is simply a denial of his own data. Two terrorists did not die in immigration custody recently, but two children escaping the violence in Central America with their families.
The problem is that the Individual I is living in a dream world of Hollywood mob movies and westerns. The United States military raided into Mexico in pursuit of
banditti and Indians with alarming impunity during the 19th and early 20th century. But this is the 21st century and such behavior is beyond
outré, it would be an international incident. His
cynical claim that Mexico would pay for his Wall of Shame was deceitful as well as
insulting. In fact, because of the historical abuse of "emergency powers" that culminated in the Watergate Affair, Congress passed the National Emergencies Act of 1976, in which the first section terminated all previous grants of emergency authority (470) to the Executive. If Individual I attempted to declare an emergency to build his Wall of Shame, Section Five of the Act allows Congress to pass a joint resolution to repudiate the declaration (the previous legislative veto provision was declared unconstitutional). Is there any doubt that Nancy Pelosi and her Democratic majority would repudiate the non-crisis emergency? The Repugnants in the Senate may be willing to protect Hair Further from impeachment, but not risk their political futures over a non-nonsensical monument to nativist excess.
Apparently, Individual I wants to hang his hat on an obscure section of the Federal Code, 10 USC 2808, which allows emergency military construction. One major problem with that twisted statutory interpretation: the Wall is expressly and admittedly
not for the use of the military, but to be used as an instrument of immigration policy. This statue expressly says that construction may be undertaken during a national emergency
requiring the use of the military by the military secretaries, if the projects
"are necessary to support such use of the armed forces." Simply unilaterally declaring an emergency to get his way is not enough. No national politician in their right mind thinks the border situation requires use of the military. Apprehensions for illegal crossings are at a sixteen year low despite increased border security. The guy is getting very bad legal advice, if he even considers it in his
confused deliberations*
If statues are not enough to convince the
extremists in the White House that Donito Trumpilini is
out of line, the Supreme Court has weighed in on the issue too. President Truman attempted to nationalize the nation's steel mills in 1952 to stop a debilitating strike during a
real national emergency known as the Korean War. The Supreme Court said the President could not use emergency powers to dictate national policy in
Youngstown v. Sawyer. So, suppose the legal-challenged Individual I decided to go ahead, anyway.
US Person thinks the nation could be faced with the spectacle of conscientious soldiers refusing to obey illegal orders. Most certainly, another serious specification would be added to the mounting Bill of Particulars against the reality-TV dictator.
*An intensely angry Trump is in El Paso,TX, not Washington DC where he should be seeking a compromise to avoid another disruptive and costly shutdown, stumping for popular support of his delusional construction project. Only one problem: the facts on the ground do not bear out his arguments for building his Wall of Shame. Crime in the border town had been declining for sixteen years, well before the border barrier was constructed in 2008-09. Lastly, only one third of the proposed construction could take place on federal property. Trump explains he would obtain land for two thirds of the wall by using a "militarized version" of eminent domain. Assuming such authority exists somewhere in the voluminous federal code--a big assumption--private and tribal land seizures would be the straw that ends Trump's unstable political career. Land seizures would be tantamount to creating a military zone over which the military, not the elected civilian government, would have total control, akin to the militarized border that now separates North and South Korea. The bipartisan committee seeking to avoid a shutdown have agreed on $1.4 billion for more border fencing. If Hair Further vetoes this compromise, chances are he will be overridden by a two-thirds majority in Congress to keep the government running until September.
