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'Gun Violence Is the Real Emergency'
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Earlier this week, House Speaker Nancy Pelosi told a group of supporters and journalists that in her view, gun violence is the real emergency. Such a statement, in the context in which she made it, should send shivers down the spines of all who believe in personal liberty protected by the Constitution.

Notwithstanding the terrifying analogy she made about gun violence — terrifying to those who believe in the individual right to keep and bear arms as articulated by the Second Amendment and interpreted and upheld by the Supreme Court — Pelosi wasn’t really speaking about guns. She was speaking about the presidency and the Constitution.

Here is the back story.

When President Donald Trump finally signed legislation two weeks ago to keep the federal government financed and open — legislation substantially similar to bills he had declined to sign in late 2018 and again in early 2019, bills that declined to give him the $5.7 billion he requested to build a wall at the southern border of the United States — he also issued a proclamation declaring a national emergency at the southern border.

He based his emergency proclamation upon anecdotal evidence that more folks were attempting to enter the United States from Mexico than the Border Patrol and the southwestern states’ safety nets could accommodate and that many of these would-be migrants were “bad people.” He produced no evidence to back up his emergency claims. When 58 former high-ranking federal national security folks — including a former Democratic secretary of state and a former Republican secretary of defense — directly repudiated the president’s stated basis for his emergency, the White House did not even respond.

As well, weeks before he signed the emergency proclamation, President Trump repeatedly offered that the threat of it was just a negotiating technique aimed at bringing House Democrats to the White House for a sit-down. And as he was announcing the proclamation itself, he boasted that he “didn’t need to do this.”

Trump’s proclamation directed the departments of Defense and Homeland Security to divert unspent funds in their budgets — funds directed to be spent on specified items by legislation passed by Congress and signed by former President Barack Obama and by President Trump himself but not yet spent — to build a 55-mile stretch of what he says will be a 1,000-mile wall.

As I have written in this column and articulated on Fox News Channel, such executive action is unlawful, as it constitutes a presidential intrusion into an area of federal behavior — spending money — that the Constitution reposes exclusively in the Congress. In the famous Steel Seizure Case in 1952, when President Harry Truman ordered the employment of nonunion workers at government expense to run strike-closed steel mills after Congress declined to do so, the Supreme Court blocked him from doing just what President Trump is attempting to do — spending money in defiance of Congress.

ORDER IT NOW

A generation after the Supreme Court rebuked Truman — during the presidency of Gerald Ford — Congress did grant the president the power to declare emergencies, but these declarations cannot be contrary to the Constitution, and they cannot give the president more lawful authority than the Constitution gives him.

Though the 1976 statute interestingly fails to define just what constitutes a presidential emergency, the courts have concluded that it consists of the onset of a sudden and unanticipated event that demands government action to preserve life, liberty or property — an event the ordinary levers of governmental power are insufficient to address. But it does not — and constitutionally cannot — authorize the president to spend money that Congress has expressly declined to spend.

Now, back to Speaker Pelosi and her comment about guns. Her constitutional argument (and I agree with her, which rarely happens) is that not only may the president not spend contrary to congressional wishes but also he cannot claim that his own declaration of a national emergency gives him another source for presidential power — in this case, the ability to condemn private property and build a wall on it.

All presidential powers come only from the Constitution — and from no other source. Were that not the case, were a president able to characterize any state of affairs as an emergency and thereby give to himself the lawful power to address it extraconstitutionally, that would do irreparable violence to the Constitution and would effectively transform the president into a prince.

Under President Trump’s theory of emergency powers, a President Pelosi could declare that gun violence is an emergency and then confiscate handguns. Or a President Cory Booker could declare that health care is an emergency and then spend unauthorized funds purchasing health insurance for those who lack it. Or a President John Bolton could declare that North Korea and Iran pose emergency threats to Los Angeles and New York, respectively, and then bomb the threatening countries back into the Stone Age.

You can see the wisdom of Pelosi’s slippery-slope fear. If President Trump can get away with this, there will be no stopping his successors — no matter who they are.

The Constitution’s separation of powers — Congress writes the laws, the president enforces them, the judiciary says what they mean; Congress declares war, the president wages war, the judiciary interprets the legal effects of war on domestic law — was not established to fortify any of the three branches. It was crafted to keep each of those branches out of the business of the other two — and thereby limit the reach of each branch and thus keep federal power separated and diffused.

The Framers knew that separated and diffused federal power would reduce the near occasions for interfering with the personal liberty of everyone in America. That’s why it is integral to the Constitution.

Copyright 2019 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Constitutional Theory, Donald Trump 
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  1. Rational says:

    THE AMERICAN JUDICIARY IS LAWLESS AND HAS MADE A MOCKERY OF THE CONSTITUTION.

    Interesting that Mr. Napalitano drank the Kool aid and is now ranting like a liberal.

    About the constitution:

    Twitter and Facebook can ban anybody (conservatives), because, as a private company, they do not have to respect the 1st amendment…

    But a baker (also private) has to bake a cake for homos, because he does not have the first amendment right of religion to say no, nor the right to be free from slavery, but the homos have a fake right to get married, and have a “right” to a cake too….

    The liberals have a right to free speech showing Trump’s bloody head, but conservative speakers can be banned from campus, despite the 1st amendment.

    A law giving men only special treatment and funds is unconstitutional, but giving women only special treatment and funds under VAWA is ok.

    These are a few of the many bogus rulings about the torn constitution from our Judiciary.

  2. anon[267] • Disclaimer says:

    Gun violence won’t end the republican party’s electoral chances, and democracy along with it. The real national emergency is a demographic one. Gun violence, a sophomoric appeal to emotion as a means of changing the subject, isn’t remotely on the same level.

  3. He produced no evidence to back up his emergency claims.

    Why bother? There is a good forty years of evidence out there.

    …and would effectively transform the president into a prince.

    As if that hadn’t already been accomplished before Mr Trump was born.

    If President Trump can get away with this, there will be no stopping his successors — no matter who they are.

    He’s been getting bad advice. But the other side is at war with us, not him. What to do?

  4. anonymous[340] • Disclaimer says:

    Just a few years ago, Mr. Napolitano seemed exceptional, someone with a national platform who believed in natural rights, the “rule of law,” etc. Now, stuff like this:

    “Though the 1976 statute interestingly fails to define just what constitutes a presidential emergency, the courts have concluded that …

    *******

    The Constitution’s separation of powers — Congress writes the laws, the president enforces them, the judiciary says what they mean; Congress declares war, the president wages war, the judiciary interprets the legal effects of war on domestic law — was not established to fortify any of the three branches. It was crafted to keep each of those branches out of the business of the other two — and thereby limit the reach of each branch and thus keep federal power separated and diffused.”

    smells stale. None of the people on the puppet show stage believe it — the Constitution long ago became a thurible, something swung around to mask the nasty arrogation of power in Washington.

    Mr. Napolitano helps to keep the Empire rolling along by channeling dissent into politics. Those who turn out to vote tend to then sit in the pews and accept whatever comes out of the ritual, with the robed penumbralators having the last word. He is an altar boy to the Establishment’s priestly class.

  5. “As I have written in this column and articulated on Fox News Channel, such executive action is unlawful, as it constitutes a presidential intrusion into an area of federal behavior — spending money — that the Constitution reposes exclusively in the Congress.”

    Gee, Mr. Napolitano, I guess Congress needs to get in gear and repeal 50 USC § 1601, 10 USC § 2808, and 33 USC § 2293, inter alia, by which they gave the Executive these powers. BTW, by your logic, all the delegated legislation and regulations spewing out of the Executive Branch departments is also unlawful.

  6. The Gun Violence meme is our nation’s way of not addressing the fact the the Americans have become the most violent people on the planet. Easier to focus on the means rather than the source.
    https://robertmagill.wordpress.com

    • Troll: Mr. Rational
    • Replies: @MikeatMikedotMike
  7. Napo is sounding just like a leftist at worst, neocon big business first open borders advocate at best. Firstly, by your logic every national emergency or use of executive power is unconstitutional, but I haven’t heard you complain about any others except the one that protects US borders. Second, Pelosi couldn’t confiscate guns because guns are protected by the constitution. Lastly, there is plenty of evidence there is a crises on the border the caravans are just the most blatant and reported about examples, but there are plenty more. I view legal immigration H1-B and stuff as worse for America, but that doesn’t mean I am fine with open borders for illegals. The President was voted in primarily to stop immigration and he tried to do it through Congress that was unsuccessful so he had to take a different legal approach.

  8. We don’t have a “gun violence” problem. We have a Black violence problem.

    In 2015, the homicide rates were (per 100,000 population):

    20.9 for blacks (non-Hispanic)
    4.9 for Hispanics
    2.6 for whites (non-Hispanic)
    5.7 for all races

  9. KenH says:

    Trump’s national emergency for building a wall in certain areas of the border might hurt feelings and political sensibilities but does not violate anyone’s basic civil liberties. If private property issues arise then the owners will be justly compensated.

    Unilaterally placing walls and/or barriers at the nation’s border isn’t exactly an end run around the Constitution as nappy and the rest of the chicken littles are saying. And if 400K to 600K or so attempted illegal crossings every year doesn’t constitute an invasion and justify a national emergency then nothing does.

    When the nation is being invaded you don’t have to sit around and wait for Congress to authorize you to do something about it.

  10. @Robert Magill

    Misrepresentation. If you are going to have an honest discussion about violence in America then you must discuss the affect of negro violence upon the greater numbers.

    Control for negros (statistically) and violence in the US resembles crime rates of other primarily white countries.

  11. anon[240] • Disclaimer says:

    “Second, Pelosi couldn’t confiscate guns because guns are protected by the constitution.”

    Not entirely correct. What will stop the future one party democrat state from reinterpreting the Second Amendment to mean that individuals don’t really have gun rights after all? Indeed, the anti-gun lobby back in the 90s used to argue that the Second Amendment’s opening statement about a militia meant exactly that – only the military should have guns and not individuals. Watch for a future court system controlled by democrats to outlaws guns, but restrict them heavily first. I predict that conservatives, being worthless, will do nothing. They’ll hand them over and then the National Review will write, “The Conservative Case for Gun Control.”

    • Replies: @Bloody Bill
    , @Joe Stalin
    , @KenH
  12. In 2015, the homicide rates were (per 100,000 population):
    20.9 for blacks (non-Hispanic)
    4.9 for Hispanics
    2.6 for whites (non-Hispanic)
    5.7 for all races

    In England we have similar statistics. It occurs to me that if one postulates a racially biased police (which seems to me pretty certain) then not only will more black men be accused and convicted than should be, on the evidence, but more white murderers will get away with murder because they are white and fewer whites will be suspected of murder than the evidence would suggest. I am not saying that there are not more black-commited murders, but that I suspect the statistics in both England and the US are skewed in that direction.

    • Replies: @dc.sunsets
  13. @ Mike etc etc
    To judge fairly, judge America black violence statistics against numbers from black nations and not just against white nations. The meme I was suggesting would include all American violence worldwide and not remain parochial, confined to weapon choices or group blame selection.

    • Replies: @Mr. Rational
  14. @anon

    Yeah they could certainly reinterpret the 2nd amendment to mean whatever they want in a one party Democrat US and I would not put it passed the so called conservative politicians to jump on either.

  15. @anon

    “The Conservative Case for Gun Control.”

    In Illinois, the so-called “Conservative” Republican Jeanne Ives running against Gov. Bruce Rauner in the Republican Party stated that bans on ‘bump stocks and trigger cranks’ was “reasonable” gun control. I only happened to come across that when I read it on her campaign website and nowhere else.

    Then I was watching a WTTW program where “Conservative” Republican Rep. Peter Roskam was appearing along with some Democrat Party hack who happened the mention the “bump stocks” as something to deal with; Roskam said: “We got it done.” So the alleged “Conservative” was actually NO DIFFERENT from the standard communist gun controller we have in IL.

    • Replies: @jeff stryker
  16. @foolisholdman

    I am not saying that there are not more black-commited murders, but that I suspect the statistics in both England and the US are skewed in that direction.

    You “suspect” that the statistics are skewed? By what? Racial bias among cops, you allude.

    This calls for empiricism on your part. Go to a predominantly white area and hang around at night for a couple weeks. Then do the same in a predominantly black area. We can compare notes if you survive the latter.

    PS: Your comment suggests that there are murders committed by whites that go unsolved and unreported. Pray tell, on what data do you base this? Murdered people are usually noticed BY THEIR ABSENCE.

  17. @Joe Stalin

    JOE

    Why is black gun violence in Chicago so high if gun control in Illinois is so rigid?

    • Replies: @Joe Stalin
  18. Napolitano is just another brick in the wall that reveals how useless is politics (and celebrity) in solving the problems of politics (and celebrity.)

    No truth will ever emerge from anyone who has access to The Megaphone. The Megaphone’s carrier frequency is LIES. Truth is completely out of phase with it, and thus is silent.

  19. @dc.sunsets

    Murdered people are usually noticed BY THEIR ABSENCE.

    The missing-but-unreported children of Mitchelle Blair prove that murdered people CAN go un-noticed in the ‘hood.  Given this, it’s not too surprising that Black people think Whites kill each other just as frequently as Blacks do and just get away with it more.

  20. @jeff stryker

    An NRA Board Member said that Black people think they will be able to obtain guns regardless of IL’s gun control laws. IL just had Gov. “Jelly Belly” Pritzker sign a bill mandating video surveillance and recording of gun shop visitors. Presumably, this is to force the small FFL dealers out of business.

    In Illinois, we have a so-called “Firearms Owner ID” card. The card just failed to stop Black Workplace Violence in Aurora, IL. But the gun controllers now are demanding that police come and collect your guns if your FOID card is revoked (DuPage County). But of course, the funniest part of all this is that the FOID card is backed by the FBI “Instant Check” that also failed.

    So why hasn’t any so-called “Conservative” moved to rid us of the IL FOID since it is duplicated by the more timely “Instant Check?”

    And we also have a 3-day waiting period on ALL gun transfers through an FFL. Think of all the gas and time wasted traveling to the gun shop TWICE to make some Cosmopolitan gun controller happy!

    • Replies: @jeff stryker
  21. @Mr. Rational

    Point well taken; i.e. that chart. I feel the conversation has been way to narrow,i.e guns, racial groupings (what group represents all those kids shooting up classmates) angry former employees, the list goes on. If no attention is paid to the example violent US foreign policy, over several generations, sets in influencing the rest of us, we’ll never get a handle on it. Why should we risk losing our guns because the DOD is trigger-happy with theirs?

  22. @dc.sunsets

    DC

    The very FEW white men who go off the rails are either Bulger-type mafia running paramilitary crime organizations or they are Dahmer or Nilsen-type serial killers with high IQ’s whose victims are on the margins of society-Milwaukee ghetto poor gay minorities; SOHO rent boys.

    They don’t get apprehended for years. Their income or sex life depends upon avoiding apprehension.

    Black crime is a random, spur-of-the-moment impulse-driven crime. They are not particular sophisticated criminals.

  23. @Joe Stalin

    JOE

    I’m being sarcastic. Blacks criminals purchase “scratches” (Slang for serial numbers filed off) on the street, usually stolen in burglaries. Often they have been used in other crimes.

    When I was young if you wanted a gun there was a street corner in Detroit you drove to and a man stood on the corner who would sell guns for $500, whatever make and model.

    None of them were rifles, so the NRA is a joke.

  24. KenH says:
    @anon

    Indeed, the anti-gun lobby back in the 90s used to argue that the Second Amendment’s opening statement about a militia meant exactly that – only the military should have guns and not individuals.

    The second amendment also says the right of the people to keep and bear arms which clearly meant it conferred the right of individuals to own guns for two reasons. The first is that the people were the militia and vice versa and militia members were expected to have their own firearms. When they weren’t serving in the militia they weren’t required to hand in their guns to a central authority.

    The second is that for almost 200 years after our founding the federal or state governments never argued that the second amendment did not confer an individual right to own firearms or that the rise of municipal police departments meant that individual ownership of firearms was made unnecessary and obsolete. Gun laws were far more liberal decades ago then they are now and at one time people could purchase rifles through the mail and were even allowed to own machine guns up until 1968.

    The second amendment was not put in place for duck and deer hunting or self defense, but to give the people the means to throw off the yoke of government tyranny which we now live under.

    The precedent for an individual to own military grade firearms was set long ago and anything else is just Jewish sophistry and fake history to justify unprecedented infringements upon the second amendment like gun seizures and/or widespread bans of popular semi-auto firearms.

  25. buckwheat says:

    Please add a humor section to this site and put this asshole’s columns in there……

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