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Old 03-15-2019, 05:51 PM
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Presidential Emergency Declaration


What exactly is covered by the President's ability to declare an emergency.

Suppose an appointment is turned down by the Senate. Could the President declare an an emergency and say he needs a _____, then appoint the turned down candidate. Congress had previously turned down Trump's request for wall funding so this situation seems similar except that it's an appointment rather than an expenditure.
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Old 03-15-2019, 06:19 PM
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The wiki for the National Emergencies Act of 1976 is a good place to start.

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Congress has delegated at least 136 distinct statutory emergency powers to the President upon the declaration of an emergency. Only 13 require a declaration from Congress; the remaining 123 are invoked by an executive declaration with no Congressional input.
It's a delegation of specified powers from the legislative branch to the executive. It's not declare an emergency and the President can just do whatever they want. There's also three other laws referenced at the bottom of the page that delegate emergency powers to the executive branch.
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Old 03-15-2019, 06:58 PM
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I'd echo what DinoR said. The President's emergency powers are rather circumscribed, and I haven't read anything that gives him the power to fill vacancies due to a declared national emergency. However, there are other presidential powers that would factor into your scenario about an appointment that fails to win Senate confirmation. In addition to the president's "emergency" powers, he's also got the ability to make recess appointments and there are some statutes governing who runs federal departments / agencies in the absence of a Senate-confirmed head which IIRC give the President some latitude in making a selection.

Last edited by HurricaneDitka; 03-15-2019 at 06:58 PM.
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Old 03-15-2019, 08:12 PM
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Trump is setting the bar rather low on this one and it will not be to the favor of Republicans the next time there is a Democratic president. Pelosi has already listed a bunch of actual emergencies that a future Dem president would be happy to override Congress on, starting with gun control.
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Old 03-15-2019, 08:15 PM
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The funny/sad thing about this is that "the wall" is not some giant conservative priority. It's just a Trump priority. And the Republicans are going along with a precedent that well may bite them in the ass for virtually no gain.

At least when Harry Reid changed some Senate rules, it was because there were actually some very important vacancies that weren't being filled, and that was the only way to get them filled. The Democrats actually got something for it. For this, the Republicans are getting nothing, aside from silly Trump nonsense. And if it holds up in court at all, the Democrats will use it for actual very big Democratic priorities, next time they have the WH.

Last edited by iiandyiiii; 03-15-2019 at 08:16 PM.
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Old 03-15-2019, 08:30 PM
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Originally Posted by DWMarch View Post
Trump is setting the bar rather low on this one and it will not be to the favor of Republicans the next time there is a Democratic president. Pelosi has already listed a bunch of actual emergencies that a future Dem president would be happy to override Congress on, starting with gun control.
Nancy Pelosi is wrong on that. She's either stupid, or thinks her followers are stupid.
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Old 03-15-2019, 08:45 PM
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Nancy Pelosi is wrong on that. She's either stupid, or thinks her followers are stupid.
Or she thinks that the GOP's followers are stupid as it is more likely aimed at them, to get them to bother their Congresscritters about it

Which isn't smart on her part as it raises irrational fear of onerous gun control as an issue in the next cycle, which in reality it is not.
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Old 03-15-2019, 09:10 PM
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Or she thinks that the GOP's followers are stupid as it is more likely aimed at them, to get them to bother their Congresscritters about it

Which isn't smart on her part as it raises irrational fear of onerous gun control as an issue in the next cycle, which in reality it is not.
Sounds like we just circled back to "she's stupid".
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Old 03-15-2019, 09:16 PM
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Originally Posted by HurricaneDitka View Post
I'd echo what DinoR said. The President's emergency powers are rather circumscribed, and I haven't read anything that gives him the power to fill vacancies due to a declared national emergency. However, there are other presidential powers that would factor into your scenario about an appointment that fails to win Senate confirmation. In addition to the president's "emergency" powers, he's also got the ability to make recess appointments and there are some statutes governing who runs federal departments / agencies in the absence of a Senate-confirmed head which IIRC give the President some latitude in making a selection.
There will never be another recess in US history. The Senate will continue to have these pro forma sessions for the sole purpose of circumventing that power.
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Old 03-15-2019, 09:22 PM
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There will never be another recess in US history. The Senate will continue to have these pro forma sessions for the sole purpose of circumventing that power.
If the same party controls Congress and the White House, they generally won't have much to fear from taking a recess. Might even be advantageous in cases where they want / don't mind someone getting appointed to a position but don't want to have to vote them in.
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Old 03-15-2019, 10:19 PM
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Originally Posted by DinoR View Post
The wiki for the National Emergencies Act of 1976 is a good place to start.



It's a delegation of specified powers from the legislative branch to the executive. It's not declare an emergency and the President can just do whatever they want. There's also three other laws referenced at the bottom of the page that delegate emergency powers to the executive branch.
Unfortunately that wiki page, which I'd already read, gives little indication of what are the 100+ things are the President can declare a national emergency over. I suppose I could go read the bill, but I was hoping there was someone here who knew if it could possibly cover appointments.
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Old 03-15-2019, 10:22 PM
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... I was hoping there was someone here who knew if it could possibly cover appointments.
No, it does not.
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Old 03-16-2019, 11:36 AM
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The President can declare an emergency over pretty much anything they want. That's not the limitation. Trump could, for instance, declare that his nominee not getting in is an emergency. The limitation is in what an emergency lets him do, which in this case is basically nothing.
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Old 03-16-2019, 06:11 PM
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Originally Posted by HurricaneDitka View Post
Nancy Pelosi is wrong on that. She's either stupid, or thinks her followers are stupid.
I'm not talking about the intelligence of the players involved. I'm talking about the precedent. If Trump manages to make up a bullshit emergency and forces it through, a Democratic President will be able to do the exact same thing.

Don't get me wrong, I don't think they will. The Democrats have shown an impressive ability to fall into a bucket of tits and come out sucking their thumbs. This is despite Trump setting the bar so low on everything that they should be able to run the corpse of Joseph Stalin against him and win in a landslide.

As ever, you get what you pay for. Republicans are willing to pay a higher price but that comes with higher risks. Trump is the ultimate test as to how much that will pay off.
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Old 03-16-2019, 06:36 PM
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Originally Posted by OldGuy View Post
Unfortunately that wiki page, which I'd already read, gives little indication
Better than the bill the Brennan Center for Justice has a detailed list of the 123 powers. It's the reference on that wiki page for the claim that I quoted.

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Originally Posted by iiandyiiii View Post
And if it holds up in court at all, the Democrats will use it for actual very big Democratic priorities, next time they have the WH.
Presidents can unilaterally end national emergencies. That's another important constraint on what can be achieved with emergency powers.

Something like a wall can mostly ignore that constraint. Once a section is built it's built. DHS would either need to scrape up non-earmarked funds or get Congress to approve funding for removal of the existing wall. Priorities like UHC or gun control, that I saw brought up in the aftermath of Pelosi's statement, don't really work well even if the law enables them. The first President that doesn't agree could scrap them without even consulting Congress. Long term or ongoing programs that are highly partisan just aren't well suited for the use of emergencies powers.
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Old 03-16-2019, 09:23 PM
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On the other hand, if Democrats could get UHC implemented for just a few years, it'd quickly become just as politically dangerous to go after it as it now is for Medicare or Social Security.
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Old 03-17-2019, 01:42 AM
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Originally Posted by DWMarch View Post
I'm not talking about the intelligence of the players involved. I'm talking about the precedent. If Trump manages to make up a bullshit emergency and forces it through, a Democratic President will be able to do the exact same thing.

Don't get me wrong, I don't think they will. The Democrats have shown an impressive ability to fall into a bucket of tits and come out sucking their thumbs. This is despite Trump setting the bar so low on everything that they should be able to run the corpse of Joseph Stalin against him and win in a landslide.

As ever, you get what you pay for. Republicans are willing to pay a higher price but that comes with higher risks. Trump is the ultimate test as to how much that will pay off.
See Chronos' post immediately above yours. A Dem president can declare an emergency, but the amount of gun control they can enact due to a national emergency amounts to essentially jack and shit.
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Old 03-18-2019, 11:35 AM
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Unfortunately that wiki page, which I'd already read, gives little indication of what are the 100+ things are the President can declare a national emergency over. I suppose I could go read the bill, but I was hoping there was someone here who knew if it could possibly cover appointments.
The issue isn't really what the President "can declare a national emergency over". In enacting the NEA in 1976, Congress gave the President broad and undefined discretion to determine whether or not something is an "emergency" and to make the appropriate declaration. At the time, the idea appears to have been that Congress could exercise a legislative veto over the declaration (by disapproving it), but legislative vetoes were found to be unconstitutional in 1983 and everything I've read indicates that it is uncontroversial to say that that rule applies here (although Chadha dealt with one-house vetoes). The result is that Congress has given the President essentially unreviewable discretion to declare an emergency. So, to answer your question, can the President declare that a vacancy in a particular PAS position is a national emergency? Probably.

But, what is the effect of declaring an emergency? The President simply gets to exercise the various emergency powers he has been delegated. The Brennan Center identified over a hundred emergency powers that Congress has given the President. There seems to be a widespread (deliberate? feigned?) misapprehension that a national emergency gives a President (or at least one you approve of) unfettered authority to do whatever he wants, but that's not at all true. The delegated powers are pretty specific.

Do they include the ability to appoint someone to a PAS position without confirmation? Not that I know of. Could it? Only to a degree. Congress doesn't have the authority to delegate away its confirmation obligation for principal officers, only inferior officers. (Side note: we generally view acting principal officers as inferior officers which is why Congress was able to enact the Vacancy Reform Act which provides a mechanism to appoint acting principal officers if there is a vacancy). I'd have trouble imagining a statute that said: Assistant Secretary for XYZ is subject to Senate confirmation, except during a state of emergency. I would think that the FVRA would allow the President to address any emergency vacancies.

Last edited by Falchion; 03-18-2019 at 11:38 AM.
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Old 03-18-2019, 03:03 PM
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While I wondered in another thread if Dotard the First was the first President to use the veto power to break his own premiere campaign promise, I'm pretty confident he's the first President to use the NEA to do so.
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