Further to yesterday’s post on the legality of the declaration of a fake emergency, a friend has called my attention to this article by Professor Jonathan Turley: Why Trump will win the wall fight. If the topic is of interest to you, I commend the post to your attention, and offer a few additional observations.
Ad Hominem Remarks
Let me begin with four ad hominem observations about the good professor himself. First of all, he knows a damn sight more about this stuff than I do, so that, on the face of things, he is much better qualified than I to offer a legal opinion.
Running counter to my first point, I note Turley’s accurate claim that he represented the Republican House of Representatives in U.S. House of Representatives v. Burwell, and his grossly misleading claim that “we won the case.” They did win it in the district court, but it was settled while it was on appeal, and the district court’s injunction was dissolved.
Thirdly, Professor Turley holds a number of idiosyncratic legal positions, as explained in considerable detail in his Wikipedia article. He is something like Alan Dershowitz—someone who professes to be socially liberal but often argues from a right wing or libertarian perspective. Only not as crazy as Dershowitz.
Of course, idiosyncratic legal positions are not necessarily erroneous legal positions.
Finally, Turley conveys his views, both orally and in writing, with great self-assurance—and, may I say, much greater self-assurance than is necessarily justified by his often debatable positions.
I’m not going to summarize every argument Turley makes—you need to read his post for yourself if you want to know his views—let alone respond to all of them. But here’s a 30,000 foot high observation.
Addressing the fake emergency argument, Turley points to lots of declared presidential emergencies, and notes that there is no case law limiting the President’s right to declare any old thing an emergency, whether it is an emergency or not. So far so good, for the pro-Trump argument.
But my understanding is that the statutory definition of “emergency” hasn’t been litigated at all, or at least not in any definitive or dispositive way.
Think of it this way: if prior presidents have claimed that the legal meaning of the word “sheep” includes “goats,” and if no court has ever called found the occasion to rule on this claim, does that imply that the Supreme Court—when presented for the first time with a forcefully argued case—will agree with a current presidential assertion that the legal meaning of “sheep” should be deemed to include “all farm animals”?
I don’t think so.
Turley’s post strikes me as a shorthand summary of a legal brief for Trump. (Maybe Turley is angling to represent The Donald in this matter.) It does not strike me as a fully considered, balanced effort to predict how the Supreme Court will actually resolve the matter.
Ladies and gentlemen, the President of the United States, in an unedited transcripts of his remarks from the Rose Garden this morning:
Thank you very much, everybody.
Before we begin, I would like to say that we have a large team of very talented people in China. We have had a negotiation going on for about two days. It’s going extremely well—who knows what that means because it only matters if we get it done, but we are very much working very closely with China and President Xi who I respect a lot, very good relationship that we have. And we are a lot closer than we ever were in this country with having a real trade deal.
We are covering everything, all of the points that people have been talking about for years that said couldn’t be done, whether it was theft or anything, anything, the unfairness. We have been losing, on average, $375 billion a year with China. A lot of people think it is $506 billion. Some people think it is much more than that. We’re gonna be leveling the playing field. The tariffs are hurting China very badly. They don’t want them and frankly if we can make the deal, it would be my honor to remove them. But otherwise, we are having very many billions of dollars pouring into our Treasury; we have never had that before with China. It has been very much of a one-way street. So that’s happening. And the relationship with China is very good, but I think they finally respect our country. They haven’t respected us for a long time, not for a long time.
The U.K. and the U.S., as you probably have been seeing and hearing, we are agreeing to go forward and preserve our trade agreement. You know all of the situation with respect to Brexit and the complexity and the problems. But we have a very good trading relationship with U.K. and that has just been strengthened further. So with the U.K., we are continuing our trade. And we are going to actually be increasing it very substantially as time goes by. We expect that the U.K. will be very, very substantially increased as it relates to trade with the United States—the relationship there also is very good.
We have a lot of great announcements having to do with Syria and our success with the eradication of the caliphate, and that’ll be announced over the next 24 hours, and many other things. A lot of positive things are going on. We’re working on a summit, and you know all about the summit. It’ll be in Vietnam. Hanoi. And we will be meeting in Hanoi. I think a lot of you will be going, I suspect, and I hope we have the same good luck as we had in the first summit.
A lot was done in the first summit. No more rockets going up, no more missiles going up. No more testing of nuclear. Take back our remains, the remains of our great heroes from the Korean War. And we got back our hostages. But we hope we will be very much equally as successful. I’m in no rush for speed. We just don’t want testing. The sanctions, as you know, remain. Everything is remaining. China has been helping us and Russia has been helping us, and South Korea I think you can say has been—we have been working very closely with South Korea, with Japan, but China, Russia on the border have really been at least partially living up to what they’re supposed to be doing, and that’s okay, as per the United Nations.
So we will have a meeting on the 27th and 28th of February, and I think that will be a very successful, and I look forward to seeing Chairman Kim. We have also established a very good relationship which has never happened between him or his family and the United States. They have really taken advantage of the United States, billions of dollars has been paid to them, and we won’t let that happen. But we think that North Korea and Chairman Kim have a tremendous potential as an economic force and economic power. Their location between South Korea and then Russia and China, right smack in the middle, is phenomenal. And we think they have a great chance for tremendous economic prosperity in the future. So I look forward to seeing Chairman Kim in Vietnam.
Today, I’m announcing several critical actions that my administration is taking to confront a problem that we have right here at home. We fight wars that are 6,000 miles away, wars that we should have never been in in many cases, but we don’t control our own border. So we are going to confront the national-security crisis on our southern border. And we are going to do it one way or the other.
We have to do it. Not because it was a campaign promise, which it is—was one of many, by the way, not my only one. We are rebuilding the military, our economy is thriving like never before—you look at other economies, they are doing terribly, and we’re doing phenomenally. The market is up tremendously today. Not that that’s anything, because I’ll go back in and they’ll say the market went back down. But the market is getting close to the new highs that we created. We have all the records. We have every record, but we are getting close to that point again where we’ll create new records. So our country is doing very well economically, and we have done a lot. But one of the things I said I have to do and I want to do is border security, because we have tremendous amounts of drugs flowing into our country, much of it coming from the southern border.
When you look and when you listen to politicians, in particular, certain Democrats, they say it all comes through the port of entry. It’s wrong. It’s wrong. It’s just a lie. It’s all a lie. They say walls don’t work. Walls work 100 percent. Whether it’s El Paso—I really was smiling because the other night I was in El Paso, we had a tremendous crowd, tremendous crowd, and I asked the people, many of whom were from El Paso, but they came from all over Texas, and I asked, them, I said, “Let me ask you as a crowd, when the wall went up, was it better?” You were there, some of you. It was not only better, it was like 100 percent better. You know what they did. But that’s only one example. There were so many examples. In El Paso, they have close to 2,000 murders right on the other side of the wall, and they have 23 murders. That’s a lot of murders, but it’s not close to 2,000 murders right on the other side of the wall in Mexico.
So everyone knows that walls work, and there are better examples than El Paso, frankly. You just take a look almost everywhere. Take a look at Israel. They are building another wall. Their wall is 99.9 percent effective, they told me. Ninety-nine point nine percent.
That is what it would be with us, too. The only weakness is they go to the wall and go around the wall. They go around the wall and in, okay, that’s what it is. It’s very simple. And a big majority of the big drugs, the big drug loads don’t go through ports of entry. They can’t go through ports of entry. You can’t take big loads because you have people, you have some very capable people, the border patrol, law enforcement looking. You can’t take human traffic, women and girls, you can’t take them through ports of entry. You can’t have them tied up in the back seat of a car or a truck or a van. They open the door, they look. If they can’t see three women with tape on their mouth or three women whose hands are tied. They go through areas where you have no wall. Everybody knows that. Nancy knows it. Chuck knows it. They all know it. It’s all a big lie. It’s a big con game. You don’t have to be very smart to know, you put up a barrier, the people come in and—that’s it, they can’t do anything, unless they walk left or right and they find an area where there is no barrier and they come into the United States. Welcome.
We have detained more people. Our border agents are doing such incredible work. Our military has been incredible. We put up barbed wire on top of certain old walls that were there. We fixed the wall, and we loaded it up with barbed wire. It is very successful. But our military has been fantastic, and I want to thank them. And it’s very necessary. We’ve broken up two caravans that are on their way. They just are in—they’re in the process of breaking up. We have another one that we haven’t been able to break up yet.
We have been working with Mexico much better than ever before. I want to thank the president. I want to thank Mexico. They have their own problems. They have the largest number of murders that they have ever had in their history, almost 40,000 murders—40,000. They’ve got to straighten that out. I think they will. But I just want to thank the president, because he has been helping us with these monstrous caravans that have been coming up. We had one that was up to 15,000 people; it’s largely broken up. Others have gotten through. And in Tijuana, you have a lot of people staying. If we didn’t have the wall up and if we didn’t have the wall secured and strengthened, they would have walked right through. They would be welcome to the United States.
One of the things we saved a tremendous, just a tremendous amount on would be sending the military. Well—we don’t need the military. ’Cause we would have a wall. So I’m going to be signing a national emergency, and it’s been signed many times before. It’s been signed by other presidents, from 1977 or so, it gave the presidents the power. There has rarely been a problem. They sign it. Nobody cares. I guess they weren’t very exciting. They sign it for far less important things in some cases, in many cases. We are talking about an invasion of our country with drugs, with human traffickers, with all types of criminals and gangs.
We have some of the greatest people I know—they’ve been with me from the beginning of my campaign, almost from the first week—the angel moms. Unfortunately, we have new angel moms. One incredible woman who showed me her daughter who we’re talking about, killed in the year of ’18. I said, “I haven’t seen you before.” She said, “No, I’m new.” I said, “That’s too bad, it’s too bad, it’s so sad.” Stand up just for a second. Show how beautiful your girl was. Thank you.
I have such respect for these people. Angel moms, angel dads, angel families. I have great respect for these people. These are great people. These are great people. They’re fighting for their children that have been killed by people that were illegally in this country. And the press doesn’t cover them. They don’t want to, incredibly, and they’re not treated the way they should be. They are fighting for other people because they don’t want what happened to their children or husband or anybody—we have one young lady whose husband—please, stand up. Your husband was just killed in Maryland. Incredible man just killed. Beautiful children won’t be seeing their father again. These are brave people. These are people that—they don’t have to be here. They don’t have to be doing this. They are doing it for other people. So I just want to thank all of you for being here, okay, I really do. I want to thank you. Incredible people.
Last year, 70,000 Americans were killed at least—I think the number is ridiculously low—by drugs including meth and heroin and cocaine, fentanyl. Now one of the things that I did with President Xi in China when I met him in Argentina at a summit before I started talking about the trade—it was a trade meeting, it went very well. But before I talked about trade I talked about something more important. I said, “Listen, we have tremendous amounts of fentanyl coming into our country, kills tens of thousands of people, I think far more than anybody registers. And I’d love you to declare it a lethal drug and put it on your criminal list.” And their criminal list is much tougher than our criminal list. Their criminal list, a drug dealer gets a thing called the death penalty. Our criminal list a drug dealer gets a thing called—how about a fine.
And when I asked President Xi, I said, “You have a drug problem?” [He said,] “No, no, no.” I said, “You have 1.4 billion people, what do you mean you have no drug problem?” [He said,] “No, we don’t have a drug problem.” I said, “Why?” [He said,] “Death penalty. We give death penalty to people that sell drugs.” End of problem. What do we do? We set up blue-ribbon committees, lovely men and women. They sit around the table. They have lunch, they eat, they dine, and they waste a lot of time. So if we want to get smart, we can get smart. You can end the drug problem. You can end it a lot faster than you think.
So President Xi has agreed to put fentanyl on his list of deadly, deadly drugs. And it’s a criminal penalty and the penalty is death. So that’s frankly one of the things I’m most excited about in our trade deal. Want to know the truth, I think maybe there is no more important point.
We are going to make billions of dollars with this trade deal. It’s going to be great with this country and great for China, I hope. Their market is down close to 40 percent. Our market is way up. We have picked up since my election trillions of dollars of worth, trillions, many trillions. And China has lost trillions of dollars. But I want it to be good for China and I want it to be good for the United States. We’ll see what happens. China is coming here next week. They are coming home, the traders. And then China is coming here next week. I’ll be meeting with President Xi at some point after that to maybe have remaining deals. We’ll make them directly one-on-one ourselves. So.
So we’re going to be signing today, and registering, national emergency and it’s a great thing to do. Because we have an invasion of drugs, invasion of gangs, invasion of people and it’s unacceptable. And by signing the national emergency, something signed many times by other presidents, many, many times—President Obama, in fact—we may be using one of the national emergencies that he signed having to do with cartels, criminal cartels. It’s a very good emergency that he signed. And we’re going to use parts of it on our dealings on cartels. So that would be a second national emergency. But in that case it’s already in place. And what we really want to do is simple. It’s not like it is complicated. It’s very simple. We want to stop drugs from coming into our country. We want to stop criminals and gangs from coming into our country. Nobody has done the job that we have ever done. I mean nobody has done the job that we’ve done on the border.
And in a way, what I did by creating such a great economy—and if the opposing party got in, this economy would be down the tubes, you know, I hear a lot of people say, “Oh well, but maybe the previous administration … ”—let me tell you, the previous administration, it was heading south and it was going fast. We would have been down the tubes. The regulations were strangling our country, unnecessary regulations. By creating such a strong economy, you just look at your televisions and see what is going on today, it’s through the roof. What happens is more people want to come.
So we have far more people trying to get into our country today than probably we have ever had before and we have done an incredible job in stopping them, but it is a massive number of people. If we had the wall it would be very easy. We would make up for the cost of the wall just in the cost of the fact that I would be able to have fewer people. We wouldn’t need all of this incredible talent, some of whom are sitting in the first row. You wouldn’t need all of this incredible talent. We would get, we would get thousands of law-enforcement people including Border Patrol. You put them in different areas and you have them doing different things, law enforcement and Border Patrol. And I want to thank law enforcement and I want to thank Border Patrol and I want to thank ICE. ICE is abused by the press, and by the Democrats, by the way, we are going to be taking care of ICE. We talk about the new bill. We’re going to be taking care of ICE. They wanted to get rid of ICE. And the bill is just the opposite of that. A lot of good things happen.
So that’s the story. We want to have a safe country. I ran on a very simple slogan: Make America great again. If you are going to have drugs pouring across the border, if you are going to have human traffickers pouring across the border in areas where we have no protection, in areas where we don’t have a barrier, then—very hard to make America great again. But we have done a fantastic job, but we haven’t been given the equipment. We haven’t been given the walls.
And in the bill, by the way, they didn’t even fight us on most of the stuff—ports of entry. We have so much money we don’t know what to do with it. I don’t know what to do with all the money they are giving us. It’s crazy. The only place they don’t want to give us much money—$1.375 billion, it sounds like a lot, but it is not so much, although we are putting it to much better use than it used to be. A lot of the past administrations, they had, it was easy to get, they didn’t build. They didn’t do what they could have done. It would have been great. It would have been great to have done it earlier, but I was a little new to the job and a little new to the profession. And we had a little disappointment for the first year and a half, people that should have stepped up did not step up. They didn’t step up and they should have, it would have been easy. Not that easy, but it would have been a lot easier. But some people didn’t step up. But we are stepping up now.
So we have a chance of getting close to $8 billion; whether it is $8 billion or $2 billion or $1.5 billion, it’s gonna build a lot of wall. We’re getting it done. We are right now in construction with wall in some of the most important areas, and we have renovated a tremendous amount of wall making it just as good as new. That’s where a lot of the money has been spent, on renovation. In fact, we were restricted to renovating, which is okay. But we are going to run out of areas that we can renovate pretty soon, so, and we need new wall.
So I want to thank everybody for being here. I want to thank, in particular, the angel moms and dads for being here. Thank you very much. We have great respect for you. The real country, our real country, the people that really love our country, they love you. So I just want you to know that, I know how hard you fight and I know how hard a fight you’re having.
I also want to thank all of the law enforcement for the job you do. Believe me, our country loves you and they respect you greatly. And we are giving you a lot of surplus. We are giving you surplus military equipment, which a lot of people didn’t like giving previous to this administration, but hundreds of millions of dollars of surplus equipment. And as we get it, as you know, we send it down, and you have much better protection. But I really appreciate you being here.
So the order is signed, and I’ll sign the final papers as soon as I get into the Oval Office, and we will have a national emergency, and we will then be sued, and they will sue us in the Ninth Circuit, even though it shouldn’t be there, and we will possibly get a bad ruling and then we will get another bad ruling, and then we will end up in the Supreme Court, and hopefully we will get a fair shake and win in the Supreme Court, just like the ban—they sued us in the Ninth Circuit, and we lost, and then we lost in the appellate division, and then we went to the Supreme Court and we won.
And it was very interesting because yesterday they were talking about the ban, because we have a ban that is very helpful, Madam Secretary, is that right? Without the ban, we would have a bigger problem. We have a ban on certain areas, certain countries, depending on what’s going on in the world, and we won. But somebody said, “President Trump lost on the ban.” He was right. I lost at the lower court. He didn’t say that we ultimately won at the United States Supreme Court. They don’t want to say that, they didn’t want to go that far. They were saying how I lost, the person sitting right up here. “Donald Trump lost on the ban.” Yeah, I did, and then I lost a second time, and you should have said that, too. Then it went to the Supreme Court and I won. Didn’t want to take it that far. But we won on the ban and we won on other things too.
The probably easiest one to win is on declaring a national emergency, because we are declaring it for virtual invasion purposes—drugs, traffickers, and gangs. And one of the things, just to finish, we have removed thousands of MS-13 gang monsters, thousands. They are out of this country. We take them out by the thousands. And they are monsters. Okay. Do you have any questions?
As of today, we have pretty much reached the point where the old story of the Emperor’s New Clothes is no longer satire. It wouldn’t surprise us if Trump showed up in the Rose Garden, bare ass naked, praising the skill of his tailor.
This observation comes from a “GOP Hill aide”:
The (accidental?) genius of Trump’s style of communicating is that he doesn’t just make an argument. He makes every argument. He’s the have your cake and eat it too President. It’s a bad deal and it’s a good deal. That way everyone hears what they want! Partisan confirmation bias to the extreme.
Others have trouble detecting the genius in “Trump’s style of communicating”—in other words, incoherent, inconsistent rambling. Paul Waldman writes,
After an utterly pointless government shutdown that lasted more than a month, President Trump has finally relented and will sign the budget agreement reached by Democrats and Republicans. As this controversy has worn on, it has been truly bizarre to watch him tie himself in knots over how to talk about his border wall: It’s a wall, it’s a fence, it’s steel slats, it has to be built, it’s already being built, it’s almost finished, it’s fantastic, we’re all gonna die. …
Think about the way Trump talks about the terrible threat we supposedly face from immigrants. When he was running for president, he described the United States as a hellhole of horrific crime and economic misery, encouraging people to feel as angry, afraid and resentful as possible. Those are powerful emotions, and they helped him get elected, in part because many people who weren’t regular voters were thrilled enough by Trump’s message that they got out and voted.
But now that he has been president for two years, it gets more complicated. He still wants people to feel anger and fear, but he also wants them to believe that he has been a tremendous success and delivered us to a paradise of safety and prosperity. It’s almost impossible to make both arguments at the same time, which is we he keeps toggling manically back and forth between “The wall is being built” and “We need the wall.”
A Massive, Unethical Social Psychology Experiment in National Gaslighting
Well, all seriousness aside, I have to say that, if and when Trump shows up in public bare ass naked, boasting of his new suit of clothes, I hope I may assume that most of his cult followers will realize something is wrong. But short of exposing himself in public, I really don’t know what will do the trick.
Let’s look at a few data points.
Now let’s ramble on over to the FiveThirtyEight.com graph of poll results, select the “Polls of likely or registered voters” option, and move that vertical line to November 4, 2018, the day of the election. The result? Trump “approvers” were at 43.9 percent and Trump “disapprovers” at 52.5 percent—again, a difference of 8.6 percent. Pretty damn close to the actual election results. My point: the fivethirtyeight.com poll average numbers seem pretty reliable.
During the shutdown, “approvers” dropped and “disapprovers” increased, and the difference rose to around 15 or 16 percent.
But in the last few days, the trend has reversed. As of today, it’s 43.0 percent versus 53.3 percent, according to fivethirtyeight.com.
The available evidence would seem to indicate that about 43 or 44 percent of us cannot tell shit from Shinola—much less an invisible wall from a real one.
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.
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!