>>> THIS WEEK THE HOUSE OF
REPRESENTATIVES PASSED A
RESOLUTION TO BLOCK PRESIDENT
TRUMP'S EMERGENCY DECLARATION AT
THE BORDER AND THE SENATE TOOK
STEPS TO VOTE ON THE SAME
MEASURE.
SINCE THE PRESIDENT DECLARED AN
EMERGENCY TO BUILD MORE BARRIERS
MANY HAVE QUESTIONED HIS POWER
TO DO SO.
FOR A BETTER UNDERSTANDING WE
TURN TO ROBERT GLENNON, A
CONSTITUTIONAL LAW EXPERT AND
PROFESSOR AT THE UNIVERSITY OF
ARIZONA, JAMES E. ROGERS COLLEGE
OF LAW.
WE HAVE HAD PRESIDENTS DECLARE
NATIONAL EMERGENCIES IN THE
PAST.
>> YES, OFTEN.
AND, IN FACT, IN 1976 CONGRESS
PASSED THE NATIONAL EMERGENCIES
ACT GIVING THE PRESIDENT
AUTHORITY TO DO JUST THAT.
AND THE PROBLEM IS THAT IN THAT
ACT CONGRESS DIDN'T DEFINE WHAT
AN EMERGENCY WAS.
SO IT'S REALLY WIDE OPEN.
>> EVEN TODAY WE DON'T HAVE A
CLEAR DEFINITION?
>> ABSOLUTELY, WE DO NOT.
>> OKAY.
>> SO IF YOU THINK ABOUT THE
FACT THAT THE PRESIDENT IS THE
CHIEF EXECUTIVE, IS THE
COMMANDER IN CHIEF AND CONGRESS
HAS PASSED THIS SWEEPING LAW,
AND EVERYONE ADMITS THERE'S A
PROBLEM AT THE BORDER.
I MEAN, WHAT KIND OF PROBLEM,
HOW SHOULD WE DEAL WITH IT IS A
DIFFERENT THING, BUT THERE IS A
PROBLEM.
I DON'T SEE A COURT OVERTURNING
HIS DECISION THAT THERE'S AN
EMERGENCY.
>> UNDER THIS DECLARATION IF HE
SAYS I'M GOING TO REALLOCATE
POTS OF MONEY UNDER THE FEDERAL
BUDGET AND I'M THE COMMANDER IN
CHIEF AND I THROW THE MILITARY
IN, IS HE CLEAR AND FREE?
>> OH, NO, NOT AT ALL.
>> OKAY.
>> IN ADDITION TO THE STATUTORY
QUESTIONS, THE BASIC ONE IS
SEPARATION OF POWERS.
HE'S THE EXECUTIVE, NOT THE
LEGISLATURE.
>> OKAY.
>> AND UNDER ARTICLE I IT'S
CONGRESS THAT APPROPRIATES MONEY
AND TELLS THE EXECUTIVE HOW TO
SPEND IT.
AND THERE'S A FAMOUS, ICONIC
SUPREME COURT CASE FROM THE
1950s.
IT INVOLVED PRESIDENT TRUMAN WHO
TRIED TO TAKE OVER THE STEEL
INDUSTRY AND THE U.S. SUPREME
COURT HELD THAT HE COULD NOT
BECAUSE CONGRESS HADN'T
AUTHORIZED HIM TO DO SO.
WHAT HAS COME FROM THAT IS A
SENSE OF THE PRESIDENT HAVING
THREE DIFFERENT POTS OF POWER.
THE BROADEST POWER IS WHEN
CONGRESS SAYS YOU HAVE THE
AUTHORITY TO DO THIS.
IN THE MIDDLE IS WHEN CONGRESS
IS SILENT.
BUT WHERE THE PRESIDENT'S POWER
IS AT THE LOWEST IS IF CONGRESS
HAS IMPLICITLY OR EXPLICITLY
SAID YOU CAN'T DO THIS.
>> IF THIS ENDS UP IN THE
COURTS, WHICH IT LIKELY WILL,
HOW IS IT LIKELY TO PLAY OUT?
WHEN YOU LOOK AT THE
CONSTITUTION AND THE LEGALITY OF
ALL THIS.
>> YES.
I THINK THERE'S A VERY POWERFUL
ARGUMENT THAT WHAT HE'S DONE IS
DIRECTLY CONTRARY TO WHAT THE
CONSENSUS AGREEMENT ACHIEVED.
I MEAN, THE SENATE AND THE HOUSE
FOUGHT LONG AND HARD OVER WHAT
TO APPROPRIATE, HOW TO PROTECT
THE BORDER.
THEY MADE SOME DECISIONS.
HE JUST DOESN'T LIKE THEM.
AND I THINK THE COURTS WILL BE
VERY PROTECTIVE OF CONGRESS.
>> OKAY.
HERE IN ARIZONA, IF THE
PRESIDENT SAYS WE NEED AREAS OF
WALL TO BE BUILT ON A BORDER
THAT HAPPENS TO BE OWNED BY A
PRIVATE RANCHER, CAN THAT
HAPPEN?
>> YES.
>> OKAY.
>> SO THE FIFTH AMENDMENT TO THE
CONSTITUTION PROVIDES THAT
PRIVATE PROPERTY SHALL NOT BE
TAKEN FOR PUBLIC USE EXCEPT UPON
PAYMENT OF JUST COMPENSATION.
SO FIRST ISSUE IS, IS IT A
PUBLIC USE?
AND YES, IT IS.
IT'S BORDER SECURITY.
SO THAT PART'S PRETTY CLEAR.
BUT THE SECOND PART IS JUST
COMPENSATION.
AND IF THE TWO PARTIES CAN'T
AGREE TO AN AMOUNT FOR WHAT THE
PROPERTY IS WORTH, THE PRIVATE
PROPERTY OWNER HAS A RIGHT TO A
HEARING.
THERE'S ANOTHER WRINKLE THOUGH,
LORRAINE, HERE, WHICH IS REALLY
INTERESTING, WHICH IS OF COURSE
THE RESERVATION BECAUSE THERE I
THINK 62 MILES OF THE
RESERVATION OF THE NATION ARE ON
THE BORDER.
AND CONGRESS, THOSE TRIBAL LANDS
CAN'T BE TAKEN AWAY WITHOUT
CONGRESSIONAL APPROVAL.
WELL, CONGRESS AND THE HOUSE OF
REPRESENTATIVES IS NOT GOING TO
APPROVE THAT.
>> IF IT GOES TO THE COURT HOW
IS THIS LIKELY TO PLAY OUT?
DOES IT EVENTUALLY MAKE ITS WAY
TO THE SUPREME COURT?
>> IT COULD.
THERE ARE A NUMBER OF DIFFERENT
LAWSUITS.
ONE OF THEM INVOLVES, I THINK,
16 STATES THAT ARE SUING,
CLAIMING THAT THEY HAVE GRANTS
OR OTHERWISE APPROPRIATIONS
UNDER VARIOUS DEPARTMENT OF
DEFENSE ACTS AND IF HE DOES THIS
THEY'LL LOSE OUT ON MONEY.
BUT THAT'S KIND OF -- LOGICAL.
IF CONGRESS IS ALLOWED TO
DECLARE AN EMERGENCY, AND IF THE
BORDER IS AN EMERGENCY, AND IT
LET HIM MOVE D.O.D. FUNDS
AROUND, THE STATES DON'T REALLY
HAVE MUCH OF A RIGHT TO SAY WELL
HE CAN'T DO WHAT CONGRESS HAS
AUTHORIZED.
>> DO YOU SUPPOSE THAT FOLLOWING
ALL THIS WE MAY HAVE SOME SORT
OF ACT THAT CLEARLY DEFINES WHAT
AN EMERGENCY IS?
>> OH, YEAH, YEAH, I THINK
ALREADY THE MEMBERS ARE LOOKING
AT ONE ANOTHER AND SAYING HOW
DID WE EVER LET THIS KIND OF
EXECUTIVE POWER BE PUT IN PLACE?
>> FAIR TO SAY IT SETS A BAD
PRECEDENT FOR THE FUTURE,
THOUGH, FOR FUTURE PRESIDENTS?
>> YES, FOR FUTURE CONGRESSES.
THAT'S WHAT'S TROUBLING SOME OF
THE REPUBLICANS WHO WOULD
OTHERWISE LIKE TO SUPPORT THE
PRESIDENT, WHICH IS THEY
UNDERSTAND THAT THERE WILL BE
DEMOCRATS IN THE OVAL OFFICE AND
IF IT'S GOOD FOR MR. TRUMP, IT'S
GOOD FOR WHOMEVER.
>> CORRECT.
OKAY.
ROBERT, THANK YOU.
>> PLEASURE TO BE WITH YOU.