State of Emergency

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thoreau
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State of Emergency

Post by thoreau » 15 Feb 2019, 15:09

Well, here we are: A President declaring a state of emergency so that he can move money around without the consent of Congress.

I'm not convinced that the courts will force the issue if when Trump refuses to comply with an order. I'm not convinced that Congress will push back if he refuses. And so in 2021 or 2025 a Blue President will declare a State of Emergency over healthcare, or gun control, or whatever else.

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Re: State of Emergency

Post by Eric the .5b » 15 Feb 2019, 15:47

Man, some people are freaking the fuck out and having to be called down by explanations that this doesn't mean he's seasoning absolute power.

But yeah, it's shitty precedent. Fortunately, even Team Red might realize it enough to go along with Team Blue.
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Re: State of Emergency

Post by Aresen » 15 Feb 2019, 16:02

Emergency is a state of mind.
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Re: State of Emergency

Post by thoreau » 15 Feb 2019, 16:21

Eric the .5b wrote:
15 Feb 2019, 15:47
Man, some people are freaking the fuck out and having to be called down by explanations that this doesn't mean he's seasoning absolute power.
No President will ever seize absolute power. They'll just seize a bit more power than their predecessor, while Congress comes closer and closer to being a vestigial organ. But they'll never completely cross that line, because there is no line, just a series of ever-darkening shades of gray.
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Re: State of Emergency

Post by Eric the .5b » 15 Feb 2019, 18:53

thoreau wrote:
15 Feb 2019, 16:21
Eric the .5b wrote:
15 Feb 2019, 15:47
Man, some people are freaking the fuck out and having to be called down by explanations that this doesn't mean he's seasoning absolute power.
No President will ever seize absolute power. They'll just seize a bit more power than their predecessor, while Congress comes closer and closer to being a vestigial organ. But they'll never completely cross that line, because there is no line, just a series of ever-darkening shades of gray.
Just so. And they'd have applauded Obama if he'd used one of his 11 declarations of a state of emergency to end-around Team Red and appropriate his own funds to do something.
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Re: State of Emergency

Post by Mo » 15 Feb 2019, 19:08

Eric the .5b wrote:
thoreau wrote:
15 Feb 2019, 16:21
Eric the .5b wrote:
15 Feb 2019, 15:47
Man, some people are freaking the fuck out and having to be called down by explanations that this doesn't mean he's seasoning absolute power.
No President will ever seize absolute power. They'll just seize a bit more power than their predecessor, while Congress comes closer and closer to being a vestigial organ. But they'll never completely cross that line, because there is no line, just a series of ever-darkening shades of gray.
Just so. And they'd have applauded Obama if he'd used one of his 11 declarations of a state of emergency to end-around Team Red and appropriate his own funds to do something.
All of the active states of emergency are essentially OFAC type situations. The two that Obama declared that are no longer active are a swine flu one that was never revoked and facially seems like a legit use and a Russian sanctions one that was revoked. Hard to both sides this thing.

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Re: State of Emergency

Post by Aresen » 15 Feb 2019, 19:35

Mo: I don't think it is 'both-siding' when thoreau suggests that Blues will use Trump's precedent in the future.

I would not at all be surprised to see President Harris declare a "Climate Change SoE" or a "Poverty SoE".
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Re: State of Emergency

Post by thoreau » 15 Feb 2019, 19:38

Eric the .5b wrote:
15 Feb 2019, 18:53
thoreau wrote:
15 Feb 2019, 16:21
Eric the .5b wrote:
15 Feb 2019, 15:47
Man, some people are freaking the fuck out and having to be called down by explanations that this doesn't mean he's seasoning absolute power.
No President will ever seize absolute power. They'll just seize a bit more power than their predecessor, while Congress comes closer and closer to being a vestigial organ. But they'll never completely cross that line, because there is no line, just a series of ever-darkening shades of gray.
Just so. And they'd have applauded Obama if he'd used one of his 11 declarations of a state of emergency to end-around Team Red and appropriate his own funds to do something.
None of what I'm saying here is about excusing Team Blue or anything. It's about noting the direction the Republic (such as it is) seems to be heading in.

Remember, I wanted to impeach Obama for keeping troops in Libya without Congressional authorization and beyond the timeline spelled out in law. That was also part of the slippery slope. Because of that episode we now have the legal precedent of "kinetic military action."

Now Trump is reallocating funds to a wall under emergency powers. The next Blue President, whoever it might be and whenever they might take office, will go further. The next Red after that will do similar. And so forth.
"They were basically like D&D min maxers, but instead of pissing off their DM, they destroyed the global economy. Also, instead of their DM making a level 7 paladin fight a beholder as punishment, he got a +3 sword of turning."
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Re: State of Emergency

Post by Eric the .5b » 16 Feb 2019, 00:56

thoreau wrote:
15 Feb 2019, 19:38
Eric the .5b wrote:
15 Feb 2019, 18:53
thoreau wrote:
15 Feb 2019, 16:21
Eric the .5b wrote:
15 Feb 2019, 15:47
Man, some people are freaking the fuck out and having to be called down by explanations that this doesn't mean he's seasoning absolute power.
No President will ever seize absolute power. They'll just seize a bit more power than their predecessor, while Congress comes closer and closer to being a vestigial organ. But they'll never completely cross that line, because there is no line, just a series of ever-darkening shades of gray.
Just so. And they'd have applauded Obama if he'd used one of his 11 declarations of a state of emergency to end-around Team Red and appropriate his own funds to do something.
None of what I'm saying here is about excusing Team Blue or anything. It's about noting the direction the Republic (such as it is) seems to be heading in.
Wasn't saying that you were. I was just reflecting on how the very Blues freaking out most about this are the very same people who wanted Obama to be able to go around Congress.
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Re: State of Emergency

Post by Eric the .5b » 16 Feb 2019, 00:59

Mo wrote:
15 Feb 2019, 19:08
Eric the .5b wrote:
thoreau wrote:
15 Feb 2019, 16:21
Eric the .5b wrote:
15 Feb 2019, 15:47
Man, some people are freaking the fuck out and having to be called down by explanations that this doesn't mean he's seasoning absolute power.
No President will ever seize absolute power. They'll just seize a bit more power than their predecessor, while Congress comes closer and closer to being a vestigial organ. But they'll never completely cross that line, because there is no line, just a series of ever-darkening shades of gray.
Just so. And they'd have applauded Obama if he'd used one of his 11 declarations of a state of emergency to end-around Team Red and appropriate his own funds to do something.
All of the active states of emergency are essentially OFAC type situations.
No shit.

Is "would have"/"did" the new bullshit "ought"/"is" confusion?
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Re: State of Emergency

Post by Tuco » 16 Feb 2019, 06:06

Oh, this is just lovely.

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Re: State of Emergency

Post by Shem » 17 Feb 2019, 21:36

thoreau wrote:
15 Feb 2019, 19:38
Because of that episode we now have the legal precedent of "kinetic military action."
Yeah, it was totally Libya that established that precedent and not Vietnam.
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Re: State of Emergency

Post by thoreau » 17 Feb 2019, 21:48

Shem wrote:
17 Feb 2019, 21:36
thoreau wrote:
15 Feb 2019, 19:38
Because of that episode we now have the legal precedent of "kinetic military action."
Yeah, it was totally Libya that established that precedent and not Vietnam.
The 1973 War Powers Resolution was passed specifically to undo the Vietnam precedent. And then Obama said "Lol, whatevz. Kinetic Military Action!"
"They were basically like D&D min maxers, but instead of pissing off their DM, they destroyed the global economy. Also, instead of their DM making a level 7 paladin fight a beholder as punishment, he got a +3 sword of turning."
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Re: State of Emergency

Post by Shem » 17 Feb 2019, 23:50

thoreau wrote:
17 Feb 2019, 21:48
Shem wrote:
17 Feb 2019, 21:36
thoreau wrote:
15 Feb 2019, 19:38
Because of that episode we now have the legal precedent of "kinetic military action."
Yeah, it was totally Libya that established that precedent and not Vietnam.
The 1973 War Powers Resolution was passed specifically to undo the Vietnam precedent. And then Obama said "Lol, whatevz. Kinetic Military Action!"
OK, Granada, then.
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Re: State of Emergency

Post by D.A. Ridgely » 18 Feb 2019, 00:11

Congress has never actually attempted to enforce the War Powers Resolution because if it ever did actually reach the Supreme Court there would be a decision as to its Constitutionality. It would suffice and be on much sounder Constitutional grounds if Congress simply prohibited use of appropriated funds for whatever cockamamie emergency a president declared to justify the use of existing funds, but that would require a veto-proof resolution which, in turn, would require a Congress with sufficient backbone to withstand the political blowback.

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Re: State of Emergency

Post by thoreau » 18 Feb 2019, 00:51

Shem wrote:
17 Feb 2019, 23:50
thoreau wrote:
17 Feb 2019, 21:48
Shem wrote:
17 Feb 2019, 21:36
thoreau wrote:
15 Feb 2019, 19:38
Because of that episode we now have the legal precedent of "kinetic military action."
Yeah, it was totally Libya that established that precedent and not Vietnam.
The 1973 War Powers Resolution was passed specifically to undo the Vietnam precedent. And then Obama said "Lol, whatevz. Kinetic Military Action!"
OK, Granada, then.
The War Powers Resolution says that operations can last up to 60 days without Congressional approval, plus another 30 days for an orderly withdrawal. The invasion of Grenada took 4 days, and there was no significant occupation period afterward.

Not saying I am OK with the invasion of Grenada, but it isn't a test case for the War Powers Resolution.
D.A. Ridgely wrote:
18 Feb 2019, 00:11
Congress has never actually attempted to enforce the War Powers Resolution because if it ever did actually reach the Supreme Court there would be a decision as to its Constitutionality. It would suffice and be on much sounder Constitutional grounds if Congress simply prohibited use of appropriated funds for whatever cockamamie emergency a president declared to justify the use of existing funds, but that would require a veto-proof resolution which, in turn, would require a Congress with sufficient backbone to withstand the political blowback.
I think that the use of military force like this is ultimately unsuitable for court cases. Say that SCOTUS issues an order to halt whatever action. Are US Marshals going to go into the Pentagon with court orders for generals to recall troops in spite of Presidential orders? Will they board planes and head to whatever conflict zone and arrest soldiers? Of course not.

The use of military force is the most serious use of state power, and if a President exercises that power in violation of a law passed by Congress then Congress really only has two options: Remove the President or accept that the President just crossed the Rubicon and got away with it. Yes, yes, they can always pass one more law, either yanking funds or saying "No, seriously, this invasion is not authorized" or whatever, but if the President is determined to carry on then he'll simply ignore that law and carry on, and Congress has to make a decision. A court order won't cut it.

We're an Empire, now, not a Republic, and checks and balances don't really apply to Emperors. It's been that way for a while, but first we pretended that it was only true for overseas actions. Then we pretended that it was only true for overseas actions and domestic surveillance, but the surveillance was just for security purposes. Now it's also the case when the President wants to redirect funds for a domestic project that Congress refused to support. (Yes, the border is in some sense only sort of domestic, but when you start thinking through the consequences for massive construction abutting private land you have to conclude that even "sort of domestic" is still pretty domestic.)
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Re: State of Emergency

Post by D.A. Ridgely » 18 Feb 2019, 01:47

It's established law that the military are not required to obey an illegal order and comptrollers and financial officers aren't going to authorize payments in direct violation of the Anti-deficiency Act. The White House can't spend money it doesn't have, it can only redirect funds already appropriated pursuant to those statutory emergency powers provisions and not in direct contravention of authorization acts specifically prohibiting spending, even more so when the money is to be used for major construction. Chaos would ensue; not lockstep obedience. And, yes, the overwhelming majority of civilian and military personnel, not to mention contractors, would heed a direct Supreme Court ruling.

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Re: State of Emergency

Post by thoreau » 18 Feb 2019, 02:06

Do you really believe that SCOTUS would issue an order with teeth if a President were taken to court over some foreign intervention? I'm not talking about some sort of punt, I'm talking about some sort of explicit order that would require Pentagon comptrollers and whatnot to actually say "Sorry, sir, but we can't..."

I think a SCOTUS ruling against moving money around for The Wall is quite possible. But I simply don't believe that SCOTUS would rule against something like Libya.
"They were basically like D&D min maxers, but instead of pissing off their DM, they destroyed the global economy. Also, instead of their DM making a level 7 paladin fight a beholder as punishment, he got a +3 sword of turning."
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Re: State of Emergency

Post by thoreau » 18 Feb 2019, 02:21

I guess here's what I really don't believe: I don't believe that SCOTUS would receive a case from anyone whom they'd recognize as having standing. The US security apparatus has lumbered along in a dubiously constitutional mode for decades (or more) and SCOTUS rarely gets cases concerning it. I think that in any situation that could create a legal test of the War Powers Resolution Congress would punt by either refusing to act or just passing some toothless resolution (as basically happened in Libya) and SCOTUS would either find that whoever is suing lacks standing, or find that it's a political question and Congress declined to really dig in its heels. Partly because they'd be cautious about standing, but mostly because few in Congress would be willing to even file such a suit, let alone vote for a resolution.

Maybe Congress would punt because, as you said, they're afraid that SCOTUS will fail to uphold the Constitutionality of it. But that's only part of the issue. SCOTUS isn't prepared to go with a Constitutional interpretation that would seriously curtail the national security state for the same reason that they aren't prepared to dismantle the rest of the modern state. And in some ways that's a defensible stance.

But the fact remains that a President is largely beyond checks and balances in military matters, and we're about to get a test case for what happens when that issue reaches the southern border. I'm not optimistic for the Republic. Even if they find a resolution that saves face for Congress and the courts, I don't think checks and balances will emerge as stronger for this.
Last edited by thoreau on 18 Feb 2019, 02:34, edited 2 times in total.
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Re: State of Emergency

Post by Jadagul » 18 Feb 2019, 02:21

thoreau wrote:
18 Feb 2019, 02:06
Do you really believe that SCOTUS would issue an order with teeth if a President were taken to court over some foreign intervention? I'm not talking about some sort of punt, I'm talking about some sort of explicit order that would require Pentagon comptrollers and whatnot to actually say "Sorry, sir, but we can't..."

I think a SCOTUS ruling against moving money around for The Wall is quite possible. But I simply don't believe that SCOTUS would rule against something like Libya.
The Supreme Court would probably decline to rule under the Political Question doctrine. But that's very different from what you were suggesting in your previous post, that such an order, were it issued, would be ignored.

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Re: State of Emergency

Post by thoreau » 18 Feb 2019, 02:30

Jadagul wrote:
18 Feb 2019, 02:21
thoreau wrote:
18 Feb 2019, 02:06
Do you really believe that SCOTUS would issue an order with teeth if a President were taken to court over some foreign intervention? I'm not talking about some sort of punt, I'm talking about some sort of explicit order that would require Pentagon comptrollers and whatnot to actually say "Sorry, sir, but we can't..."

I think a SCOTUS ruling against moving money around for The Wall is quite possible. But I simply don't believe that SCOTUS would rule against something like Libya.
The Supreme Court would probably decline to rule under the Political Question doctrine. But that's very different from what you were suggesting in your previous post, that such an order, were it issued, would be ignored.
I agree with you that the order would not be issued, in part because I think everyone would be afraid to find out whether the order would be followed or ignored. How often are court orders issued that would have immediate implications for soldiers in the field?

What's funny is that I used to be the guy who said "Come on, there must be a legal way to constrain executive power in matters of national security!" and everyone told me I'm naive. After watching Obama effectively ratify the GWOT and everything that came with it, I've become more cynical, and now I'm pretty sure that there's no way the Senate could ever prevent an Imperial President from crossing the Rubicon, and everyone's telling me there are totally ways for the other branches to rein in the national security state.
"They were basically like D&D min maxers, but instead of pissing off their DM, they destroyed the global economy. Also, instead of their DM making a level 7 paladin fight a beholder as punishment, he got a +3 sword of turning."
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Re: State of Emergency

Post by thoreau » 18 Feb 2019, 02:37

I don't think anyone would say "Fuck it, we're ignoring a court order." I think they'd be told to carry on with their mission while the lawyers confer and work out what to do. Everyone would get to feel like they're in compliance. And then the lawyers would work out a fig leaf of compliance to buy time, and buy more time, and we'd get to the point where the spirit of the order is flouted (an operation continues in spite of explicit Congressional opposition) but the letter of the law is followed (because funds for the operation are patched together from various sources covered by creative interpretations of the relevant laws).

Call that what you will, but it isn't checks and balances.
"They were basically like D&D min maxers, but instead of pissing off their DM, they destroyed the global economy. Also, instead of their DM making a level 7 paladin fight a beholder as punishment, he got a +3 sword of turning."
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Re: State of Emergency

Post by D.A. Ridgely » 18 Feb 2019, 02:56

Not entirely on point, but when I was working for the National Guard Bureau doing contract and fiscal law, Congress had prohibited the Guard from spending any money on what was then called microcomputers, the reason being that prior purchases had been uncoordinated and there was a huge interoperability / compatibility problem. We pissed off quite a few senior civilians and military officers, but the language was clear and there was no work-around.

Congress holds the purse strings and is constrained from taking on POTUS on political grounds, not legal grounds. Nor would there be any standing question; federal courts would be lining up to issue injunctions and, so far at least in modern times, the White House hasn't ignored or violated a federal injunction. (Other sorts of federal orders haven't always fared so well.) The thing about military spending is that supplemental appropriations are routinely required when we're actually engaged in prolonged military operations. Most of the budget goes to routine operations and maintenance, military salaries and specific, line item authorized construction and weapons systems programs. There's only so much diversion of funds that will only last so long without Congress ponying up more money. The courts have routinely construed supplemental appropriations under the too broadly worded AUMF as tacit Congressional approval the War Powers Resolution aside. Again, without predicting how the Supreme Court would decide a flat out violation of the ADA and attempt to obligate nonexistent (because non-appropriated) funds, I don't think we've reached the point where the Executive would prevail with both co-equal branches in overt opposition. Of course, the devil's in the details but, again, the real pressures are political, not legal or Constitutional.

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Re: State of Emergency

Post by thoreau » 18 Feb 2019, 10:56

D.A. Ridgely wrote:
18 Feb 2019, 02:56
Of course, the devil's in the details but, again, the real pressures are political, not legal or Constitutional.
If your point is that nothing will get fixed unless Congress grows a spine, then I think you and I are pretty close on this issue. It may be that the courts are willing to rule against the President on military matters if the right case is brought by the right party, but Congress lacks the necessary resolve to bring that case, or even create the necessary facts (e.g. actually voting "no" on something that matters) to reinforce the illegality of a President's actions. Until Congress grows a spine, points of law are moot. Somebody actually has to stand up and say "No!" in a way that matters before the courts can get involved.

tl;dr If the Senate doesn't object then we'll never get to find out if it was actually illegal to cross the Rubicon.
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Re: State of Emergency

Post by Shem » 18 Feb 2019, 18:58

thoreau wrote:
18 Feb 2019, 10:56
It may be that the courts are willing to rule against the President on military matters if the right case is brought by the right party,
This is not a military matter. It's a budgetary matter involving the military. Budgets are fundamentally a Congressional power.
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