THE RECENT BATTLE IN WASHINGTON OVER SECURITY AT THE SOUTHERN
BORDER HAS RAISED QUESTIONS ABOUT EXECUTIVE AUTHORITY, WITH
PRESIDENT DONALD TRUMP DECLARING A NATIONAL EMERGENCY TODAY IN
ORDER TO GET HIS BORDER WALL BUILT.
WHAT ARE THE PRESIDENT'S POWERS IN DECLARING A NATIONAL
EMERGENCY, AND WHAT DOES IT MEAN FOR HIM TO INVOKE THAT
PRIVILEGE?
HOW HAVE NATIONAL EMERGENCIES BEEN USED IN THE PAST?
AND IS THERE A SHOWDOWN IN THE SUPREME COURT BETWEEN CONGRESS
AND THE PRESIDENT LOOMING?
CAROLEE MCGRATH SAT DOWN WITH JERROLD DUQUETTE, ASSOCIATE
PROFESSOR OF POLITICAL SCIENCE AT CENTRAL CONNECTICUT STATE
UNIVERSITY FOR HISTORY, CONTEXT AND INSIGHT.
>> HE'S ACTUALLY BEEN TRANSPARENT I GUESS YOU COULD
SAY ABOUT HIS INTENTIONS.
HE'S BEEN SAYING ALL ALONG THAT IF HE DOESN'T GET A DEAL, HE'S
GOING TO USE HIS POWER TO DECLARE A NATIONAL EMERGENCY,
WHICH IS TRUE.
PRESIDENTS HAVE THE POWER TO DECLARE NATIONAL EMERGENCIES.
IT'S NOT SOMETHING THAT IS DONE FREQUENTLY AND IT'S ALSO NOT A
POWER THAT HAS BEEN CONCEIVED OF AS SOMETHING THAT WOULD BE USED
IN A SITUATION LIKE THIS.
DECLARING A NATIONAL EMERGENCY HAS BEEN USED FOR ALL KINDS OF
THINGS LIKE FREEZING ASSETS, IT'S ACTUALLY BEEN USED FOR
NATIONAL SECURITY ON A NUMBER OF OCCASIONS.
IN FACT, WHEN PRESIDENT TRUMAN DECLARED A NATIONAL EMERGENCY TO
TAKE OVER THE STEEL MILLS, THE FAMOUS STEEL MILL SEIZURE CASE,
HE WAS DOING IT FOR A NATIONAL SECURITY REASON.
IT WAS FOR THE PROSECUTION OF THE KOREAN WAR AND SO IT'S NOT
NEW THAT IT'S BEING USED WITH THE PRETEXT OF A NATIONAL
EMERGENCY RELATED TO FOREIGN AFFAIRS, ALTHOUGH LAST TIME THE
SUPREME COURT DEALT WITH THAT, THEY SAID NO TO PRESIDENT
TRUMAN, BUT THEY SAID YEAS TO PRESIDENT ROOSEVELT WHEN HE
INTERRED JAPANESE AMERICANS.
A LOT OF THE TALK IS WHEN THIS UPHOLD IN COURT?
>> SO WILL IT UPHOLD IN COURT?
WHAT KIND OF CHALLENGES?
>> IT'S A REALLY GOOD QUESTION.
IT'S IMPORTANT TO NOTE THAT THE STATUTE THAT TURNS OUT TO BE
USEFUL TO PRESIDENT TRUMP IS THIS 1976 NATIONAL EMERGENCIES
ACT THAT YOU AND I DISCUSSED AND IT WAS ACTUALLY CONCEIVED AND
WRITTEN TO CONSTRAIN PRESIDENTS, BUT IN THIS INSTANCE IT'S
ACTUALLY GOING TO MAKE IT A LITTLE BIT EASIER FOR PRESIDENT
TRUMP TO DO WHAT HE WANTS TO DO BECAUSE IT DOESN'T HAVE -- IT
DOESN'T REALLY REQUIRE HIM TO BE AS SPECIFIC AS WE MIGHT LIKE.
IT DOES REQUIRE HIM TO IDENTIFY A STATUTE, HOWEVER, THAT HE CAN
USE TO DECLARE -- TO ACTUALLY MOVE MONEY, RIGHT?
PEOPLE DON'T SEEM TO REALIZE THAT -- WELL, A LOT OF PEOPLE I
TALK TO DON'T REALIZE THAT THE PRESIDENT ACTUALLY ISSUED AN
EXECUTIVE ORDER LAST YEAR OR EVEN BEFORE LAST YEAR TO BUILD A
WALL, BUT IT WAS AN ORDER TO HOMELAND SECURITY TO BUILD A
WALL, BUT THEY COULDN'T BUILD A WALL BECAUSE THERE HAD BEEN NO
APPROPRIATION TO DO THAT, ALL THEY COULD DO WAS PREPARE TO
BUILD A WALL, WHICH MEANT ALMOST NOTHING.
SO THIS DECLARATION OF A NATIONAL EMERGENCY IS JUST THE
LATEST EFFORT OF HIM TO GO AROUND CONGRESS, RIGHT?
>> CAN CONGRESS REVOKE THIS?
>> OKAY.
GREAT QUESTION.
CONGRESS CAN, BUT THEY ALMOST CERTAINLY WON'T.
CONGRESS HAS ACTUALLY NOT REVOKED ANYBODY'S EFFORT TO DO
THIS.
THERE ARE SCORES OF THESE THAT ARE STILL OPEN AND ON THE BOOKS.
THE LAW IN '76 GIVES THE CONGRESS THE OPPORTUNITY TO DO
THIS, TO STOP HIM AND EVEN REQUIRES THEM TO MEET EVERY SIX
MONTHS WHEN THIS STUFF HAPPENS TO MAKE SURE THAT IT'S STILL AN
EMERGENCY.
THEY HAVE NEVER MET ONCE, DESPITE THE FACT THAT IT'S BEEN
USED SCORES OF TIMES.
AND THE OTHER PROBLEM, UNFORTUNATELY, IF YOU'RE WORRIED
ABOUT PRESIDENTIAL POWER IS IN 1982, THERE WAS A FAMOUS SUPREME
COURT CASE THAT ELIMINATED WHAT'S CALLED LEGISLATIVE VETOES
AND THAT MEANS FOR OUR PURPOSES HERE, THAT MEANS THAT FOR THE
CONGRESS TO STOP HIM, TO END THE EMERGENCY, BOTH HOUSES OF
CONGRESS WOULD HAVE TO PASS A JOINT RESOLUTION.
OBVIOUSLY, THE SENATE MAJORITY LEADER HAS ALREADY INDICATED
HE'S NOT GOING TO DO THAT.
SO WHEN THE SPEAKER IS TALKING ABOUT THEY'RE GOING TO USE THEIR
OPTIONS, ONE OF THEM IS NOT A LEGISLATIVE MATTER.
THEY'RE BASICALLY GOING TO HAVE TO RELY ON A COURT CHALLENGE.
>> NOW IN 2014, PRESIDENT OBAMA ISSUED EXECUTIVE ACTION, IT
WASN'T A NATIONAL EMERGENCY, BUT TO PROTECT ILLEGAL IMMIGRANTS IN
DACA.
SOMETHING A LITTLE BIT DIFFERENT, BUT USED HIS
EXECUTIVE POWER.
>> TRUMP IS HARDLY THE FIRST PRESIDENT TO TRY TO ACHIEVE A
POLICY GOAL WITHOUT HAVING TO GET CONGRESS TO GO ALONG SO IT'S
NOT A NEW -- IT'S NOT NEW IN THAT SENSE.
IT IS NEW IN OTHER SENSES.
HE'S TRYING TO ACCOMPLISH SOMETHING THAT EVEN HIS OWN
PARTY DIDN'T GIVE HIM WHEN THEY HAD TOTAL CONTROL.
THAT MAKES IT HIGHLY UNUSUAL.
IT'S SOMETHING THAT THE MAJORITY OF THE AMERICAN PEOPLE CLEARLY
DON'T WANT, AND IT'S ALSO SOMETHING THAT'S CLEARLY NOT AN
ACTUAL EMERGENCY.
>> AND PEOPLE WILL ACTUALLY ARGUE WITH YOU ABOUT THAT AS FAR
AS IT BEING AN ACTUAL EMERGENCY BECAUSE HE'S CALLING IT A
HUMANITARIAN CRISIS IN THE COMMENTS HE'S JUST MADE TALKING
ABOUT DRUGS, OPIOID CRISIS AND RELATING IT TO THAT.
AND I KNOW THAT THE DEMOCRATS HAVE PUSHED BACK ON THAT TO A
GREAT DEGREE.
>> THERE'S JUST NO DATA TO SUPPORT THAT AS AN EMERGENCY.
>> EVEN PRESIDENT OBAMA HAD TALKED ABOUT A HUMANITARIAN
CRISIS SO HOW DO YOU COME TO SOME SORT OF AGREEMENT THE
THERE'S A PRESSING ISSUE ON THE BORDER?
>> YOU CAN CLAIM THINGS ARE A HUMANITARIAN CRISIS THAT ARE
CHRONIC OR ONGOING HUMANITARIAN CRISES, THEREFORE THEY'RE NOT
EMERGENT?
SO IT'S ACTUALLY A VERY SIMPLE MATTER.
THEY AREN'T EQUAL THINGS.
A HUMANITARIAN CRISIS DOESN'T MEAN NATIONAL EMERGENCY, RIGHT?
THEY'RE TWO DIFFERENT THINGS REALLY.
IT IS OBVIOUSLY TRUE THAT SOME NATIONAL EMERGENCIES ARE ALSO
HUMANITARIAN CRISES, BUT IT'S A LOGICAL FALSE OBVIOUSLY TO SAY
THAT JUST BECAUSE IT'S ONE IT'S THE OTHER, RIGHT?
SO IN A VERY SIMPLISTIC WAY YOU CAN ARGUE THAT, BUT YOU'RE
NOT -- YOU'RE ONTO SOMETHING IN THE SENSE THAT THIS IS GOING TO
BE DECIDED IN A COURT BY JUDGES AND WE FRANKLY -- EVERYTHING I'M
READING FROM LEGAL EXPERTS IS SAYING WELL, HE CAN MAKE THE
CASE IN A PLAUSIBLE WAY, IN OTHER WORDS, HE CAN TRY TO COME
UP WITH THE JUSTIFICATION, AND IT'S HARD TO SAY WHETHER HE WILL
SUCCEED OR NOT.
IT'S REALLY HARD TO PREDICT AT THIS POINT HOW THE COURT WILL
INTERPRET THIS.
IN OTHER WORDS, HE HAS THE LEGAL RIGHT TO DO IT, AND OBVIOUSLY,
THERE'S A RIGHT TO CHALLENGE HIM.
BUT WE DON'T KNOW HOW THAT WILL FARE.
HOWEVER, ANOTHER ANGLE TO THIS THAT'S INTERESTING IS PROCEEDING
HERE, HE'S NOT JUST GOING TO GET PUSHBACK FROM POLITICAL
OPPONENTS.
HE'S GOT TO ACTUALLY TAKE BY EMINENT DOMAIN HUNDREDS OF MILES
OF PEOPLE'S PRIVATE PROPERTY AND THAT WILL BE THE REAL FIGHT
HERE.
HE WILL HAVE A VERY DIFFICULT TIME MAKING THAT LOOK GOOD.
TAKING AMERICAN CITIZENS' PRIVATE PROPERTY TO BUILD A WALL
THAT THE AMERICAN TAXPAYER IS GOING TO PAY FOR, SO HE'LL RUN
INTO MORE POLITICAL TROUBLE EVEN IF HE DOESN'T RUN INTO A SORT OF
JUDICIAL ROADBLOCK.
>> BUT IN 2006 YOU HAD THE SECURE FENCES ACT AND THERE WERE
DEMOCRATS, YOU KNOW, THAT SIGNED ON TO THAT CERTAINLY AND THAT
WAS NOT 55 MILES OF WALL AS WAS APPROPRIATED IN THIS FUNDING
BILL.
THAT WAS UP TO 700, OF COURSE, IT WAS MAYBE A DIFFERENT
CONSTRUCTION.
>> SURE.
>> SO WHAT'S THE CHANGE?
>> OKAY THERE'S NO CHANGE IN THE SUPPORT OF DEMOCRATS OR
REPUBLICANS FOR THIS KIND OF SECURITY.
BUILDING STRUCTURES AND BARRIERS HAS HAPPENED ALL THE TIME.
JUST NOT A PERMANENT WALL.
SO -- >> THE STRUCTURE THAT WAS BUILT
IS PERMANENT RIGHT?
THAT HAD BEEN CONSTRUCTED?
>> THERE'S A BIG DIFFERENCE BETWEEN A CHAIN-LINK FENCE AND
BY THE WAY, BORDER SECURITY ISN'T JUST PHYSICAL STRUCTURES
THIS WAY, IT'S ELECTRONIC SURVEILLANCE.
SO WHEN WE TALK ABOUT BORDER SECURITY, IT'S A WHOLE HOST OF
REALLY COMPLICATED THINGS, RIGHT?
>> IT'S BECOME SUCH A POLITICAL FIGHT.
>> AND THAT'S EXACTLY RIGHT, WHAT'S THAT IT IS NOW, IT'S A
POLITICAL SYMBOL.
>> SO NOBODY IS GOING TO BE AGREEING WITH THE OTHER SIDE AND
EVERYBODY'S DIGGING IN, ONE OF THE INTERESTING THINGS THAT HAS
COME OUT OF THIS IS THAT NANCY PELOSI RAISED THE IDEA WELL IF
HE CAN DO THIS, IF PRESIDENT TRUMP CAN DO THIS NATIONAL
EMERGENCY, WELL, IF THERE'S A DEMOCRAT WHO'S A PRESIDENT,
MAYBE WE'LL DO THE SAME THING WITH GUNS.
THAT MAKES A LOT OF PEOPLE NOW NERVOUS ON BOTH SIDES OF THE
AISLE.
>> AND IT SHOULD.
>> OF WHAT THIS MEANS.
>> ABSOLUTELY SHOULD.
IT ABSOLUTELY SHOULD.
OBVIOUSLY, CONVENTIONAL WISDOM WOULD PLACE THIS ACTION WELL
BEYOND THE NORM, REGARDLESS.
AND JUST BECAUSE OTHER PRESIDENTS HAVE USED IT, LIKE
CERTAINLY PRESIDENT OBAMA DID IN FACT, USE HIS EXECUTIVE
AUTHORITY TO TRY TO GET AROUND CONGRESS AND THE COURTS SPANKED
HIM SEVERAL TIMES.
HE DID NOT GET THROUGH A LOT OF THAT, BUT THE IDEA THAT THE
SPEAKER IS TALKING ABOUT IS PROBLEMATIC BECAUSE IT'S SORT OF
SAYING WELL I GUESS WE'LL JUST HAVE TO SURRENDER TO THIS KIND
OF ACTIVITY BECAUSE THAT'S THE WAY POLITICS IS PLAYED IN THIS
ERA AND THAT'S FRIGHTENING IN A WAY, BUT THE OTHER ELEMENT OF IT
THAT I THINK THE REPUBLICANS SHOULD BE CONCERNED ABOUT IS
WHEN IT COMES TO THE AUTHORITY OF PRESIDENTS, A DEMOCRATIC
PRESIDENT WHO WANTS TO GET AROUND A CONSERVATIVE CONGRESS
WOULD PROBABLY DO MORE THAN A CONSERVATIVE PRESIDENT WHO WANTS
TO GET AROUND A LIBERAL CONGRESS BECAUSE CONSERVATIVE PRESIDENTS
ARE THE ONES WHO WANT TO HAVE LESS GOVERNMENT SO IN A WAY
PELOSI IS TRYING TO SAY THIS GOES BOTH WAYS AND OUR WAY WOULD
BE WORSE.
AND I THINK SHE'S RIGHT ABOUT THAT, AND I THINK THE
REPUBLICANS OUGHT TO HEED THAT WARNING.