Conservatives: Trump in the right declaring nat'l emergency

Friday, February 15, 2019
Chris Woodward, Chad Groening (

Trump speaking outside WH (Feb 2019)President Donald Trump is on firm constitutional ground in declaring a national emergency earlier today, argue some conservatives. But did the president have other options to secure the southern border?

During an announcement at the White House on Friday morning, President Trump said he will declare a national emergency to fulfill his pledge to construct a barrier along the U.S.-Mexico border. Art Arthur, a resident fellow in law and policy at the Center for Immigration Studies, says this is not unprecedented.

"The fact is that we've had nearly 60 national emergencies since 1976 when the presidents were given this authority," Arthur tells OneNewsNow. "Congress gave the president authority to declare national emergencies – and that allows him to use certain authorities. And the fact is the president got the deal that he could out of Congress and then took the steps that he felt he had to – and I agree with those steps."

Arthur believes this matter will ultimately wind up before the U.S. Supreme Court.

"There will be a judge is going to say that the president has exceeded his authority and will have a 110-page order; and then it is going to the Ninth Circuit's three-judge panel. Maybe they'll approve, maybe they won't," he says.

And the lawsuits start ...

(Associated Press) - It didn't take long for someone other than Congress to take action. The American Civil Liberties Union says it will file a lawsuit challenging President Trump's emergency declaration to fund a wall on the U.S.-Mexican border.

The Friday announcement came hours after Trump signed the declaration and said he expected legal challenges. The civil rights group will argue that Trump's use of emergency powers is unprecedented and can't be used to build a border wall.

ACLU executive director Anthony Romero says the declaration is "patently illegal." Their legal action would be separate from anything Congress may do.

Meanwhile, California is likely to sue Trump over his emergency declaration, the state attorney general said Friday. Attorney General Xavier Becerra and Gov. Gavin Newsom, both Democrats, told reporters there is no emergency at the border and Trump doesn’t have the authority to make the declaration.

"No one in America is above the law, not even the president of the United States," Becerra said. "The president does not have power to act frivolously."

Becerra and Newsom said they were reviewing the emergency declaration but were likely to join other states in suing. They did not say when the state plans to file a lawsuit or what specific legal arguments it will use.

But both challenge the notion that there was a true emergency. Becerra said past presidents used such declarations after the Sept. 11 terrorist attacks in 2001 and the Iran hostage crisis in 1979.

"It will [then] go to an en banc panel [of the Ninth Circuit], and they most definitely will not approve. They'll find some grounds on which to say the president doesn't have this authority. And then ... it's probably going to go the Supreme Court, and the Supreme Court will say that the president does in fact have this authority."

Bauer, Gary (American Values)Conservative activist Gary Bauer with American Values concurs with Arthur.

"President Trump has every legal right to issue this emergency declaration," he writes in his End of Day Report today. "But, as he conceded during his press conference this morning, there will be a flurry of lawsuits – and he will probably lose in lower left-wing courts still dominated by Obama appointees."

And as Arthur described above, Bauer expects the administration will fast-track an appeal to the Supreme Court, where he expects Trump will prevail – just as he did on the travel ban.

"Here's something to keep in mind," Bauer concludes. "No one questions the president's authority to send troops to the border. Every president in recent memory has done it.  Those troops regularly help build additional fencing to secure the border. If the president can do that, why can't he tell them to dig holes and pour concrete?"

Other options?

What other options did the president have? OneNewsNow posed that question to a former criminal prosecutor.

"I think the president could have availed himself of congressional statutes that allow him to place physical barriers as an impediment to drug trafficking," responds Abraham Hamilton III, legal counsel for the American Family Association.


"He could have connected the influx of illegal narcotics that make their way into our country through the southern border as a basis to erect a border wall or barrier or whatever you want to call it – [and he could have done so] without congressional action," the attorney continues. "I think that was something that should have been looked at in more specific detail, [something] that I hope the president would have looked at – but he's now announced his intentions to declare a national emergency."

Could a future president declare a national emergency over something such as gun violence or climate change or any other issue he or she thought was a national emergency?

"... According to the Federal Register, since the National Emergencies Act of 1976 was passed into law there have been 58 national emergencies [for] everything from swine flu to rough diamonds," Hamilton answers. "But it would ... depend on what action a subsequent president is trying to accomplish. It depends on what the actions are."

In this particular instance, Hamilton says the president is going to have to articulate the national emergency and combine it with a mobilization of military forces.

"I think in this instance, because of the most recent issue with the caravans coming to our southern border and the military members being dispatched south, that you have some factual basis to tie the action of erecting a border wall to the president's declaration of a national emergency," he continues.

Hamilton admits that, like many others, he is concerned about a subsequent president attempting to expand the national emergency powers.

"[I'm concerned] not because of the black letter of the law, but because of the combination of the media and the judiciary that seems to be very amenable to secular, progressive priorities that would allow a unilateral expansion of those powers," he explains. "[I'm not concerned] because of the law itself, but because of those institutions that may be able to provide a check and a balance not providing that check and balance."

While newly confirmed Attorney General William Barr could be the one to argue the president's case in court, he will at the very least weigh in on the decision as to who that person will be, according to Hamilton. "The president won't get to pick who he wants from the Department of Justice, but it would be a DOJ attorney," he assures.

Editor's Note: The American Family Association is the parent organization of the American Family News Network, which operates

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