The Daily Signal - #401: Trump's National Emergency Faces Legal Challenges

Episode Date: February 18, 2019

Sixteen states have announced they're filing a lawsuit against President Donald Trump's national emergency declaration. The Heritage Foundation's John Malcolm, an expert in legal affairs, joins us to discuss what will likely happen as the case winds through the courts. Plus: A CBS reporter says the media is biased.We also cover these stories:•The Trump administration is reportedly launching a global effort to legalize homosexual conduct in countries where it’s criminalized. •Justice Clarence Thomas suggested Tuesday that a pivotal media case, The New York Times vs. Sullivan, might need to be revisited,•Martina Navratilova, a lesbian tennis star, is speaking out against allowing transgender athletes to compete in sports.The Daily Signal podcast is available on Ricochet, iTunes, SoundCloud, Google Play, or Stitcher. All of our podcasts can be found at DailySignal.com/podcasts. If you like what you hear, please leave a review. You can also leave us a message at 202-608-6205 or write us at [e-mail]. Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Wednesday, February 20th. I'm Kate Trinco. And I'm Danielle Davis. Well, President Trump's declaration of a national emergency on the border has provoked a national lawsuit. Today, we'll talk to the Heritage Foundation's John Malcolm to get a read on where things are headed legally and what kind of precedent this will set. Plus, what happens when an acclaimed CBS journalist exposes the media's liberal bias? Because that just happened. We'll discuss.

But at first, we'll cover a few of the top headlines. As expected, President Trump's national emergency declaration about the border crisis is getting legal challenges. Sixteen states, all but one led by a Democrat governor, announced the lawsuit this week, which states, per the Wall Street Journal, President Trump has veered the country toward a constitutional crisis of his own making. Trump tweeted Tuesday, as I predicted, 16 states led mostly by open border Democrats and the radical left, have filed a lawsuit in, of course, the Ninth Circuit. California, the state that has wasted billions of dollars on their out-of-control fast train with no hope of completion, seems in charge. We'll chat more with John Malcolm about the lawsuit's fate later in the podcast.

Well, just last week, Andrew McCabe, the former deputy director of the FBI, said that it was he who ordered an investigation into President Trump after he fired FBI director James Comey in 2017. Now he's also saying that top members of Congress knew about his decision and that they didn't bat an eye. Appearing on NBC's Today Show on Tuesday, McCabe said that he and other FBI officials told a bipartisan group of eight lawmakers that he had ordered a probe saying, quote, no one objected, not on legal grounds, not on constitutional grounds, and not based on the facts. Deputy Attorney General Rod Rosenstein will be leaving the Justice Department in about a month, reports the Washington. Washington Post, citing an unnamed source. Rosenstein, the number two in the department, appointed Robert Mueller, a special counsel to lead the Russia investigation. His decision to leave comes shortly after William Barr was confirmed by the Senate to be

the new Attorney General. Well, after a month away on leave, Justice Ruth Bader Ginsburg returned to her seat at the Supreme Court for oral arguments on Tuesday, smiling and with a clear voice. The 85-year-old justice had been out recovering from surgery and after two cancerous nodules were removed from her lung. It was her first time in 25 years on the court to miss oral arguments. Senator Bernie Sanders, independent of Vermont, will run again for president in 2020. Here's a snippet of his interview with CBS News.

I am very proud of, and in a sense, this campaign, John, is a continuation of what we did in 2016. You will recall, you may recall, that in 2016, many of the ideas, that I talked about. Medicare for All, raising the minimum wage to $15 an hour, making public colleges and universities tuition free. All of those ideas, people say, oh, Bernie, they're so radical. They are extremely American people just won't accept those ideas. Well, you know what's happened over three years?

All of those ideas and many more are now part of the political mainstream. So you're saying the party came your way? Well, I don't want to say that I think, Most people would say that. Well, the Trump administration is expected to launch a global effort to legalize homosexual conduct in countries where it's criminalized, according to NBC News. U.S. ambassador to Germany, Richard Grinnell, who is openly gay himself, is hosting LGBT activists from across Europe to strategize about how to push for legalization in foreign countries. Many countries in the Middle East, Africa and the Caribbean currently outlaw homosexuality. The plan is narrowly conceived and does not involve.

of pushing for same-sex marriage. Justice Clarence Thomas suggested Tuesday that a pivotal media case, the New York Times-R-Sullivan, might need to be revisited when explaining his decision not to take up another case regarding a Bill Cosby's accuser's claim about her reputation being hurt. Quote, there appears to be little historical evidence suggesting that the New York Times' actual malice rule flows from the original understanding of the first or 14th Amendment, Thomas wrote. New York Times v. Sullivan essentially established that there would not be legal consequences for news outlets publishing something false unless it could be proven that they knew it was false and went ahead and essentially acted maliciously. Well, Martina Navratilova, a lesbian tennis star, is speaking out against allowing transgender athletes to compete in sports against the opposite bodily sex.

In an op-ed published by the Sunday Times, she writes, quote, Letting men compete as women simply if they change their name and take hormones is unfair, no matter how those athletes may throw their weight around, end quote. She goes on to say, I'm happy to address a transgender woman in whatever form she prefers, but I would not be happy to compete against her. It would not be fair, end quote. She says she came to these convictions after months of study, and she pushed back against activists who would call her position bigoted.

She said it's simply about fairness. Last month, I mentioned that Empire actor Jesse Smollett was alleging he was the victim of a hate crime by two men, one of whom he claimed shouted about MAGA country, a reference to make America great again. He spoke on ABC's Good Morning America in an exclusive interview. What motivated this attack? I could only go off of their words. I mean, who says, Empire, this MAGA country, ties a noose around your neck and pours bleach on you.

And this is just a friendly fight. Well, now Smollett's story is rapidly unraveling, and it appears to be a staged attack. While the Chicago Police Department remains vague in their official statements, CNN reported that unnamed sources that they claimed were from law enforcement and had knowledge of the investigation, were saying the police now believe the attack was staged. And quote,

Smollett paid to me. men to orchestrate the alleged assault, end quote. And now the talk is about whether Smollett will face a grand jury himself. Well, up next, we are joined by John Malcolm to discuss the lawsuit surrounding President Trump's declaration of a national emergency. Do conversations about the Supreme Court leave you scratching your head? Then subscribe to SCOTUS 101, a podcast breaking down the cases, personalities, and gossip at the Supreme Court.

So, President Trump announced on Friday that he was declaring a national. National Emergency at the Border. Joining us to discuss is John Malcolm, Vice President for the Institute for Constitutional Government and Director of the Meath Center for Legal and Judicial Studies at the Heritage Foundation. So, John, first off, you wrote in a Daily Signal op-ed that you thought Trump had legal grounds to declare a national emergency. Why is that?

Well, he's been given very broad authority under the National Emergencies Act. So here's what the president has done in order to declare a national emergency. He has to make this declaration under the National Emergencies Act. That's a post-Watergate bill that describes the procedure that follows such a declaration. He has to notify Congress and he has to talk about what other statutory authority he is relying upon in order to reallocate funds to do what it is that he wants to do. He has done that specifically, in fact, out of the $8.1 billion that he now, he now, now is going to try to use to build this barrier, $4.5 billion of it did not require a declaration

of a national emergency. So Congress gave him $1.4 billion as part of the appropriations package that he got. He's going to use another $600 million from the Treasury Department's asset forfeiture fund. Those are funds that come from law enforcement activities by Treasury agents. And the statute that governs that fund clearly says that any funds left over at the end of the fiscal year that are not obligated, the Treasury Secretary can allocate them to any federal law enforcement agency for law enforcement purposes.

And there's no question that what's going on on the southern border are law enforcement operations against drug smuggling and human smuggling. He's going to get another $2.5 billion from the Defense Department's drug interdiction program. That program is set out in a statute, Title 10 United States Code Section 284. a statute that was signed into law by President Obama, allows him to use these funds in that program for, among other things, building a fence along any border where drugs are flowing across that border. That does not require a declaration of national emergency. The last $3.6 billion does.

That is coming from a pot of money set aside for military construction projects. There is a statute, Title X, United States Code Section 2808, that says that if the president declares a national emergency and says that the armed forces are going to be used to address that national emergency, the Secretary of Defense can take funds set aside for military construction projects and reallocate them to any other construction project that is needed to support the use of the armed forces to address that emergency. So it's only that last pot, that $3.6 billion that is triggered by the President's Declaration. So we've seen a group of 16 states suing the administration over this.

What exactly are they suing over? There's so many elements to that that you just mentioned. And really, each of them has got to be considered on its own merits, right? Yeah, well, first of all, this isn't the only lawsuit that's been filed. There were two other lawsuits filed before California is the lead plaintiff for the 16 states. Surprise, surprise. Yeah, so last week, public citizen on its own behalf, on behalf of three owners of land along the border in Texas and also an environmental group filed a lawsuit here in D.C. And there was a second lawsuit filed by an organization called Crew, which stands for Citizens for Responsibility and Ethics in Washington.

Both of those lawsuits were filed here. California's case on behalf of itself and the other 15 states, that was filed in the Northern District of California. They have an unusual theory of standing, which is to say that all of the funds that are going to be reallocated from this military construction budget would otherwise have gone to projects in their states. And that's what gives them standing. I mean, the argument that they're essentially making is that this is unconstitutional and that it violates what Congress wanted to do. Congress didn't give him all of these funds. They view it as a separation of powers argument. arguing that Congress controls the power of the purse.

And I suppose that they will also argue, to quote Chuck Schumer and Nancy Pelosi, that this isn't really a national emergency. It's a manufactured crisis. And I guess that they will also argue that even if it was a real crisis, it certainly would not require the use of the armed forces. And that even if it did require the use of the armed forces, building a barrier along the southern border is beyond just providing a construction project to support the armed forces. have to see how it all plays out. I don't view this, by the way, as a separation of powers

argument for the simple reason that Congress has delegated the president, this authority under the National Emergencies Act and under the other statutes that I talked about. They may very well regret having done so, but they did. So it implicates separation of powers, but here I think the president is operating, pursuing to authority that Congress gave to him. him or at least gave two previous presidents and he is now taking advantage of. The president certainly did not help his case by saying, look, I don't need to do this now. I could have done this over time. It somewhat undercuts the narrative that this is a genuine emergency.

But he also laid out a pretty compelling case in terms of drugs flowing across the border, the increase in political asylum claims, how backlog the immigration courts are, the plight of the migrants that are coming over into our country, and also, of course, the tremendous number of crimes and serious crimes that are committed by people who are illegal aliens who made it across the border in our country now. So what do you think is going to happen with these lawsuits? Should we expect that there's going to be an injunction issued any time now? Trump, of course, said very confidently that he thought this thing could go to the Supreme Court

and they could win it. What does the timeline look like and what do you think is going to happen? Well, this might end up being, you know, the travel ban part two in terms of how these cases proceed. Certainly the challengers to this action are seeking injunctive relief. They are going to try to get one of these district court judges to enter a nationwide injunction to prevent the president from doing any of this stuff. Again, I don't know how these judges deal with the fact that $4.5 billion of this was not contingent on a declaration of national emergency. I don't know whether they're going to separate out that $3.5 billion that did require a declaration or whether they're going to try to deal with the whole kit and caboodle and stop the president from using any of this money. Given what happened in the travel ban case, I think there's a distinct possibility that one of these judges will do that, enter a nationwide injunction. And if they do, then the case should escalate quickly, I would say, through the lower courts up to the Supreme Court. Traditionally, federal courts are reluctant to second guess judgments made by the president when it comes to national security.

Presidents, after all, every day received classified intelligence briefing about the various threats we face, including along the southern border. Federal judges have no expertise in these matters and do not receive classified briefings. But as you saw with the travel ban, you know, there are certainly judges out there that were fully prepared to second-guess President Trump with respect to national security decisions on the travel ban. And there may very well be some federal judges out there who are prepared to do the same now with respect to what he wants to do along the southern border. Well, we've seen a number of Democrats now say that this sets a new precedent for a future president to declare a national emergency on any host of issues that they care about. Nancy Pelosi said as much. Do you think that's true? Well, anytime a president does something that's aggressive, it sets a precedent of sorts. And if the courts uphold it, it has the effect of somewhat expanding presidential power. And if the courts reject it, it has an impact on what future presidents can do. The National Emergencies Act is. been around now for I think 46 years. It's been invoked, I think, 59 times, 60 times by former presidents, never been challenged in court before. I would also note, from what

it's worth, that a number of Democrats were on record in 2006 talking about the need for a barrier along the southern border. They all passed. The Secured Fence Act, it was supported at the time by then senators Barack Obama, Joe Biden. Chuck Schumer, Diane Feinstein, others. And I don't think the situation along the border has gotten much better since 2006. You know, their argument is going to be is that it hasn't gotten much worse either, and therefore this isn't really an emergency. But, you know, we'll see how that all plays out.

But I think Pelosi specifically mentioned climate change, and we know that people like Representative Alexandria Ocasio-Cortez cited, I think it was a UN report that said the world could end in 12 years or something like that, which seems a bit hyperbolic. But, you know, I mean, do you see this as really enlarging the grounds for what is an emergency? Well, again, it's one thing to declare an emergency. But if a president does so, he or she has got to then identify what other statutes allow them to declare an emergency in these situations. and what are they allowed to do once an emergency has been declared? I'm unaware.

There are well over 100 statutes. I think the Brennan Center at one point recently said it was 136 statutes that talk about what a president can do if an emergency is declared. I am unaware of any statute that would allow a president to take money that has been appropriated but unobligated and to reallocate it to address things like climate change. I want to ask you also about previous presidents, particularly Obama and Bush, what kinds of national emergencies did they declare and do they kind of compare to this? Well, I know that there are 31, I believe, national emergencies that were declared, some going back possibly as far as the first George H.W administration that are still in effect. There's been a national emergency in effect since 9-11 that has been reauthorized time and again.

And lots of other emergencies involving crises in other countries, emergency authority to deny people visas or to freeze monies, that sort of thing. One of the arguments that President Trump has certainly trotted out in the court of a public opinion is that other than 9-11, I think most people would be very hard pressed to name any of those other national emergencies that are still in effect. And if they were able to identify them, they would probably find them less compelling than the situation we face along the southern border. So conservatives were very critical of President Obama's use of executive power. Of course, there's a famous pen and pad quote.

Some liberals are alleging that backing Trump's national emergency declaration shows hypocrisy. Do you see that Trump's use of it here is different than Obama's use of executive? executive power? And if so, how? Yeah, I do. I mean, any time a president, they're similar in the sense that a president is acting unilaterally because Congress has not done what he wanted them to do. So in that sense that they are similar. And every time any president engages in unilateral action, you have to look at what is he doing and does he have any authority, either statutory authority, which is given to him by Congress, or express or implied constitutional authority

to act on his own. What President Obama did, in my opinion, with his deferred action for childhood arrivals program and then the DAPA program that followed it, he flew in the face of Congress as well as expressed through the Immigration and Nationality Act. So the Immigration and Nationality Act says that there are certain people who are allowed into our country, and there are others who are not allowed into our country. people who are here illegally are deportable. What President Obama said is, I have a category of people who are not allowed in this country,

who clearly entered here illegally and who are deportable, and I am just not going to enforce the law with respect to those people. And in fact, I'm going to give them government benefits to which they otherwise would not be entitled. So he was ignoring a federal statute or contravening a federal statute. President Trump is not doing that. President Trump is acting pursuant to statutory authority that Congress has given him. Congress may very well regret having given him that statutory authority. They may try to go back and amend the statutes so that he or a future president couldn't do this again in the future.

But the president is citing the statutes that he is relying upon. Barack Obama could not do that. Well, John Malcolm, appreciate you being in here. And if there's a surprise adjunction next week, we'll try to have you back in here. Sounds great. Are you looking for quick conservative policy solutions to current issues? Sign up for Heritage's weekly newsletter, The Agenda. Each Tuesday in the Agenda, you will learn what issues Heritage Scholars on Capitol Hill are working on, what position conservatives are taking, and links to our in-depth research.

The Agenda also provides information on important events happening here at Heritage that you can watch online, as well as media interviews from our experts. Sign up for the agenda on heritage.org today. Lara Logan won an Emmy Award for her work as a news correspondent for CBS, but now she's giving some tough words for her friends in the mainstream media. Here's what she recently said on the podcast, Mike Drop. How do you know you're being lied to? How do you know you're being manipulated?

How do you know there's something not right with the coverage? when they simplify it all and there's no gray. It's no gray. It's all one way. Well, life isn't like that. If it doesn't match real life, it's probably not something's wrong, right? So, for example, you know,

all the coverage on Trump all the time is negative. There's nothing, there's nothing, no mitigating policy or event or anything that has happened. And since he was elected, that is out there in the media's that you can read about, right? Well, that tells you that's distortion of the way things go in real life. Because although the media has always been, historically, always been left-leaning, we've abandoned our pretense, or at least the effort to be objective today.

The former executive editor of the New York Times has a book coming out, Jill Abramson, and she says we would do, I don't know, dozens of stories about Trump every single day and every single one of them was negative. She said, we have become the anti-Trump paper of record. Well, that's not our job. That's a political position. That means we've become political activists in a sense,

and some could argue propagandists, right? And there's some merit to that. And toward the end of that discussion, she admitted that the interview was professional suicide for her. So, Kate, do you think this will help mainstream journalists reflect on their coverage at all? No. All right, great. We can wrap it up.

Just because I'm cynical. You know, I think it's interesting. I wonder if she's voiced these comments privately to others. I think there are some good folks in the mainstream media who would admit that there's a real group think occurring right now. You know, and has been for decades, frankly. I mean, we all know that, you know, anytime they pull. the mainstream media, the liberals to conservative ratio is abysmal. But it's interesting to see someone speaking out about this and, you know, someone who works at CBS and who's obviously been in the middle of it.

I mean, I would think that, you know, mainstream journalists by and large would be concerned about their perception by the American people, right? Because, you know, there's been a decline in that. I mean, conservatives typically do not see the mainstream media as covering them fairly. And that, I mean, that itself is not good for journalists and for their newspapers and their outlet. So, I mean, I would at least think that in the long run, you know, look, this Trump thing is not going to last forever. He's not going to, you know, going to live forever. We're going to have a new president. There's going to be new periods in our history.

And you need a media, I mean, say what you will about the media establishment. Like, you need an establishment that is responsible. Yeah, I just, I don't think, I think the story that they tell themselves is that, the reason people are unhappy with them is because people love Trump and Trump gets bad press. And it's not motivated by desire for responsible journalism. It's motivated by partisanship. And I think that's a shame because I think that you can be very pro-Trump. And yet you can also point out very real problems with the media's coverage,

of which, you know, we've covered many on the show and many on the Daily Signal. But I do think that sometimes, especially the DC media establishment, they live in such a bubble and they really can't see it. I was recently reading an article for Esquire by Ryan Liza, who was the New Yorker correspondent for, I think a decade before he was ousted on a Me Too thing. He's also a commentator of some kind on CNN. But anyway, very establishment figure in the DC media landscape. and he wrote this article about the social scene in D.C. And he was saying that it's such a problem to have Trump in the White House because there's no bipartisanship anymore. And all these, he interviewed these people who were saying like, well, it's one thing to be bipartisan, but we have moral qualms about the Trump people.

They're separating children at the border. We can't socialize with these people and pretend that they're normal. And everyone was acting like D.C. has never had a moral calculus and who gets invited to parties. Now, I mean, of course, first of all, this piece is ridiculous. I mean, D.C. people take themselves way too seriously. But secondly, the thing that sort of struck me was how would have touched that sentiment was. Of course, any pro-life person must have said, should I invite pro-abortion Democrat lawmakers to my parties and have someone who I think is encouraging, perhaps unintentionally or unawaredly, without knowledge, whatever, unawaredly is not a word.

Unwittingly. Yes, unwittingly. Someone who is encouraging the murder of small children. Am I comfortable serving? them, you know, odours at a party. This is not a new thing for the DC social scene to involve moral calculations. But the way Ryan Liza wrote, you would think this had never been encountered before. So this is a very long-winded way of saying that, no, I think the media is unfortunately really oblivious to their own biases, and I don't think it's going to get better. And I think

what will be interesting is there hasn't really been a push by anyone to start a new journalism some outlet that truly tries to be objective, probably because it doesn't look like it would make a lot of money. I think it would be interesting if someone tried to do that and adhere to it to see how it would do. I'm curious if Laura Logan will have any consequences for what she said. I mean, she wasn't making a claim against anyone specific, so it was pretty vague. But I'd be curious, she did say that it was her word, professional suicide.

I'm curious what she means by that or what she expects to happen. Probably fewer party invites. Yeah, maybe so. All right, well, we're going to leave it there for today. Thanks so much for listening to The Daily Signal podcast, brought to you from the Robert H. Bruce Radio Studio at the Heritage Foundation. Please be sure to subscribe on iTunes, Google Play, or SoundCloud, and please leave us a review or rating on iTunes to give us feedback.

We'll see you again tomorrow. You've been listening to the Daily Signal podcast, executive produced by Kate Trinko and Daniel Davis, Sound design by Michael Gooden, Lauren Evans, and Thalia Rampersad. For more information, visit DailySignal.com.