Happy National Emergency Day

word meaning

Will the courts—and, in particular, the Supreme Court—uphold Trump’s purported use of his powers under the National Emergencies Act of 1976? Like many legal questions, the issue is, at one and the same time, both complex and simple. And, if you wish to gain a basic understanding of the relevant legal reasoning—as opposed to emoting and bloviating about it—then you need to grasp both the complexity and the simplicity of the matter.

Here, the complexities involve constitutional law, identification of all the relevant statutes, interpretation of the pertinent statutes (including a fair amount of case law), and a lot of theological reasoning about who would, and who would not, have “standing” to appear in court as a plaintiff to challenge Trump’s actions. For a quick summary, I recommend yesterday’s post from the Journal of the American Bar Association, Can Trump legally use emergency powers to build a border wall? Experts weigh in.

My sense is that the good folks at the ABA Journal have gone a little bit out of their way to find Trump-friendly legal experts to pontificate on all these legal complexities. But, if you actually want to understand a legal issue, then you need to begin by wrapping your mind around your adversary’s best arguments (or his least bad arguments, as the case may be).

Now for the fundamental, simple issues.

The Humpty Dumpty Rule of Statutory Interpretation

In 1976, Congress made a considered decision not to include language defining “emergency” in the National Emergencies Act. Trump appears to reason that Congress thus made him a presidential Humpty Dumpty, with the power to define the term any way he wants to define the term.

Trump did not go to law school. If he had done so, then he would have learned that if you want to know what a word in a statute means, then—absent a specific statutory definition—you look to the dictionary, and then you consider what the dictionary says in light of public policy. In other words, your legal analysis must be informed by an understanding of what problem Congress thought it was addressing when it enacted the statute.

Merriam-Webster says “emergency” means “an unforeseen combination of circumstances or the resulting state that calls for immediate action” or “an urgent need for assistance or relief.”

In context, the argument is that a national emergency justifying extraordinary presidential action means a situation demanding immediate action, that Congress did not foresee and provide for, or that Congress does not have time to consider and provide for.

A Rational Relation Between the Perceived Emergency and the Presidential Action

Reports this morning are that Trump intends to divert $2.5 billion from current drug interdiction problems, in order to build a wall that will not stop drugs from entering the country.

Does the President not only possess Humpty-Dumpty-like powers to define words, but also the power to act irrationally in addressing the perceived problem that he chooses to call a “national emergency”? That would be surprising.

The Legal Significance of Congressional Consideration and Action

Here, the country has debated, and Congress has considered. the question of a border wall at great length. Having duly considered the matter, both houses of Congress have enacted legislation addressing the topic.

Even if the President might be deemed to possess the powers of Humpty Dumpty in other circumstances, does his power extend to a situation where Congress has fully considered and resolved the matter, and he is unhappy with the result?

Trump Loyalty Versus Logic, Precedent, and Public Policy

A Trump loyalist would find a way to rule for Trump. But that would create a precedent for a fundamental change in our constitutional order.

I have no idea what Alito, Gorsuch, Kavanaugh, and Thomas will say on this topic. I do not believe that John Roberts will render a decision favoring the Cult of Trump.

Be we shall see what we shall see.

Legal Sabotage, Anyone?

And one more thing.

It will also be interesting to see how our new attorney general will handle the matter. Perhaps he, too, has joined the Cult of Trump. But, as I have said before, I doubt it.

One option for him in supervising the legal defense of the national emergency declaration would be to ensure that the legal briefs supporting Trump are so badly written as to sabotage the case. And, by the way, that could easily be done by employing language that Trump himself would love!

We shall see what we shall see.

Torn

With new border deal, Republicans are trying to negotiate Trump’s surrender

Trump pans spending deal as shutdown deadline approaches: GOP leaders are urging Trump to back the agreement, even though it falls short of his wall demands.

On the one hand, I know another shutdown would be terrible.

On the other hand, I struggle to restrain myself encouraging him to shut it down again, by pretend begging:

Pretty please, o pretty please with sugar on top, o President Tiny Hands, please, please don’t shut down the government again!

briar patch

 

Who Will Investigate the Lieutenant Governor?

MoFo

This sounds like a rhetorical question, but actually it’s a real question, with a real answer. It turns out that the office of lieutenant governor of Virginia is a part time job, paying an annual salary of $36,321. Virginia Lieutenant governors are expected to have a day job.

Up until a couple of days ago, Justin Fairfax’s day job was partner of Morrison & Foerster, a top tier corporate law firm (AmLaw ranks it number 28 in the country). Now he’s been placed on leave by his law firm, and they have hired outside counsel to investigate the rape allegations against him.

Morrison—universally known as MoFo—has compelling economic interests that dictate a full and fair investigation. The most important among these is the need to continue to attract top legal talent to the firm.

Many law school graduates would hesitate to accept employment with a law firm perceived as railroading an African American partner, based on flimsy and unreliable evidence.

But by like token, many law graduates would hesitate to accept employment with a law firm that disregards serious accusations of sexual misconduct.

MoFo urgently needs to get to the bottom of the matter, and that right quickly. As a matter of cold, hard economic calculation, they urgently need to do justice, and to be seen to do justice.

Organizations like MoFo do not hesitate to act on the basis of cold, hard economic calculations.

Needed: A Better and Wiser Set of Plutocrats

centrists

In The Billionaires Waited Too Long to Panic Martin Longman nails it. He develops an important theme that is often glossed over: the anomaly of elite support for the likes of Trump, in alliance with the likes of Roy Moore. I have emphasized the point in this blog, but have—perhaps foolishly—looked for a time when the billionaires would come to their senses and act out of enlightened, long term self-interest.

As the title of his piece indicates, Longman thinks they have waited too long.

He may well be right.

Longman writes,

The billionaires have been looking around for someone with the credentials of a Douglas MacArthur or a Dwight Eisenhower because, just as the Republican Party of 1952 was about as useful as teets on a bull, the contemporary version is a psychiatric wreck totally unsuited and unprepared to responsibly represent anyone’s interests. Alas, no war heroes of sufficient stature are available, and the Starbucks guy seems to be auditioning less for president than for most punchable face.

There were #NeverTrumper people who were kind of getting accustomed to having one foot outside of the Party of Lincoln until they got a load of Elizabeth Warren’s wealth tax and puddles began to form around their ankles. They’re beginning to fear that Rep. Alexandria Ocasio-Cortez’s proposed 70 percent top marginal income tax rate is more popular than the idea of a President Michael Bloomberg.

Suddenly, Trump doesn’t look so bad. After all, he did build the Autobahn deliver on tax reform, regulatory rollbacks, and undermining Obamacare. He did withdraw from the Paris Climate Accord. He is cracking down on the crazy socialists in Venezuela and Cuba. And look at all those Heritage Foundation judges!

I’ve long wondered why the billionaires have not gotten serious about building a replacement for the Republican Party. They could begin by denying the Republicans any funding. …

But the billionaires waited too long. California set sail and Texas is probably next. The people want someone to pay for the Great Recession. They want someone to pay for our hollowed out small towns and failing farms. They want someone to pay for the fact that we have a Russian agent in the White House and the Republicans won’t do a damn thing about it. They’re losing interest in the old arguments about why they can’t have nice things. …

So, now, at this late date the billionaires need to build a new party, but they can’t do it with intellectuals. They can’t do it with professionals. They can’t do it with the underclass or with the know-nothing Republican base.

At least Bloomberg understands the problem well enough to understand that to win back the suburbs the billionaires have to care about shootings in schools. But they also have to care about climate change and the environment. They have to care about people’s retirement security. They need to spend on roads and railways.

Aardvark’s Animadversion

The problem with lots of people who made lots of money is that they have spent their entire loves making money and, in consequence, have taken leave of their common sense.

Their common sense would dictate that only by halting the spiraling economic inequality can they survive, in the long run, to enjoy their economic good fortune.