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National Emergencies: Constitutional and Statutory Restrictions on Presidential...

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So when the President threatens to use those same emergency authorities to try paying for a border wall after Congress has refused, we watch closely. And so should you.

Justice Jackson’s concurring opinion in Youngstown set forth the analytical framework that has come to define this area of law. It explains that executive power stands at its lowest ebb when confronting an explicit act of Congress denying the purported authority, as President Truman did when attempting to seize steel mills. In contrast, executive power attains maximal reach when authorized (either explicitly or by implication) by Congress, such as when Congress has authorized military action. In between, the executive branch has flexible authority within a “zone of twilight” on issues that Congress has not addressed.

Flash forward to today. Congress has not appropriated funds to build the wall requested by the President. Given that Congress is the branch of government with the exclusive power to tax and spend, the most obvious way to characterize this refusal is as a rejection of the President’s request—placing the President at his “lowest ebb” of power under the Youngstown analysis.

My fear kind of is that it doesn’t matter that it isn’t constitutional. Im not sure our judicial branch is entirely capable to be trusted in determining constitutionality or stopping unconstitutional practices anymore. I think parts of it are; but that kind of makes these events more like strategy games on how they can position such cases to which courts. Making the judicial system’s role in the game of checks and balances more of a strategy game than an actual constitutional enforcement mechanism.

I’m not sure how adept the Trump administration is at playing this game. They have shown both signs of playing it very well and very poorly.

There are still some chances it can be stopped short of deciding constitutionality. Im hoping some of those can kind of swoop in, before it gets to that point.

Though somewhere in the past couple of years… the world has convinced me we (Amercia) are capable of building this bizare monument to white racial fear and hate. We still fortunately have a small amount of time to decide not to.

Aside real quick: are we sure that just isn’t how it works? My BS History detector is beeping, telling me that building a strategy game and selling checks and balances would be a real clever way to rig the game out the gate.

Here’s a refinement: what can we compare it too? Is some country just crushing represenative democracy and multi-divisional governments? What are some good targets to examine?

Gah, this is gonna rattle in my head all day! :stuck_out_tongue_winking_eye: