As Trump idles in the White House today contemplating his strategy to extort the billions of dollars of taxpayer money he needs for the downpayment on his useless border wall through the continuation of the government shutdown, he is still considering whether to declare a national emergency to circumvent a Congressional roadblock that he has yet to make disappear by holding his breath and stamping his feet.
If only the president had one of his furloughed aides around to read him the editorial page of The New York Times today, he might be able to avoid adding to the list of indictable infractions that he’s already facing down. For there in the op-ed section, Trump would find an essay by Bruce Ackerman, a Yale University law professor, who provides the president with a warning that he should not ignore.
The title and subheading of the op-ed send the most direct message that Trump needs to hear:
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“If he did, and used soldiers to build it, they would all be committing a federal crime,” the subtitle practically screams.
While the press has been full of speculation that Trump was going to declare just such a national emergency any minute now, Professor Ackerman proffers a compelling reason as to why the president has yet to divert funds from the Pentagon and order the military to begin construction of his immigration panacea.
“Not only would such an action be illegal, but if members of the armed forces obeyed his command, they would be committing a federal crime,” Ackerman notes.
Reminding readers that the nation’s traditions rooted in the Constitution prohibit the president from using the military to enforce domestic laws, he cites a long-standing federal law that calls for criminal penalties for such an action.
“A key provision, rooted in an 1878 statute and added to the law in 1956, declares that whoever “willfully uses any part of the Army or the Air Force” to execute a law domestically “shall be fined under this title or imprisoned not more than two years” — except when “expressly authorized by the Constitution or Act of Congress.”
It is not just this statute that Professor Ackerman calls upon in his warning to Trump. He points to “Another provision, grounded in a statute from 1807 and added to the law in 1981,” that “requires the secretary of defense to ‘ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel)’ must ‘not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.’”
The only exception to these prohibitions outside of when authorized by Congress, as they did during the catastrophe surrounding Hurricane Katrina, is the ability of the U.S. Coast Guard to act as law enforcement “within the domestic waters of the United States.”
“But there is no similar provision granting the other military services a comparable power to “search, seize and arrest” along the Mexican border….Similarly, the current military appropriations bill fails to exempt military professionals from criminal punishment for violating the law in their use of available funds.”
Ackerman goes on to explain the provisions in the National Emergencies Act of 1976 that give Congress the ability to prevent any president from abusing the powers that they could claim during an actual (or imagined) emergency.
“If President Trump declared an emergency, Section Five of the act gives the House of Representatives the right to repudiate it immediately, then pass their resolution to the Senate — which is explicitly required to conduct a floor vote within 15 days. Since President Trump’s “emergency” declaration would be a direct response to his failure to convince Congress that national security requires his wall, it is hard to believe that a majority of the Senate, if forced to vote, would accept his show of contempt for their authority,” the legal scholar writes.
Ackerman may be giving the fawning Senate Republicans more credit than they are due in this circumstance, but it’s good to know that there are laws in place to prevent a “Wag the Dog” moment.
The Yale professor goes on to outline various scenarios that could play out if Trump does indeed decide to invoke the threat of an imagined national emergency before he spells out the nightmare crisis that outweighs any threat from foreign immigrants or even foreign troops at this point.
“What this all adds up to is a potential crisis much graver than whatever immigration emergencies the president has in mind: A legally ignorant president forcing our troops to choose between his commands and the rule of law in a petty political struggle over a domestic political question,” Ackerman concludes.
An intelligent and prudent president would be wise to heed Professor Ackerman’s warning against using his emergency powers in this political battle. Unfortunately, for the past two years, an intelligent and prudent president is exactly what America has been lacking.
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Original reporting by Bruce Ackerman in The New York Times.