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Trump's Brazen Unconstitutional Overreach
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Last week, President Donald Trump followed through on a threat he had been making for months. It was not a blistering or insulting tweet. It was not an attack on the press or congressional Democrats. It was an attack on the Constitution.
Here is the back story.

In 2015, Trump began offering that as president, he would build a “big, beautiful wall” along the border of the United States and Mexico and that Mexico would pay for the wall. His stated purpose throughout the 2016 presidential campaign and beyond was that a wall is necessary to stop the onslaught of immigrants illegally entering the United States at places other than lawful ports of entry.

He also offered his personal view that many of the folks entering through these unapproved areas are gang members who are trafficking in drugs and human slavery.

After the president of Mexico rejected paying for a wall, Trump asked Congress to do so. Curiously, he did not ask for the wall payment during the first two years of his presidency — when Republicans controlled both houses of Congress — but waited until the Democrats, who largely oppose the wall, were in control of the House.

So determined has he been to build a wall — any wall, so as to be able to assert that he has fulfilled a campaign promise — that he has dropped his demand that Mexico pay for it, modified his demand that it even be a wall (because his own Border Patrol folks told him that a wall would impair their ability to observe behavior on the south side of it) and reduced the length of his proposed barrier from 1,000 miles to 55 miles. Congress still refused.

So determined has he been to build a barrier of any length that he rejected budgetary measures that had been passed by both the Republican Senate and the then-Republican House, and permitted about one-third of the federal government to shut down for 35 days at the end of 2018 and the beginning of 2019. During negotiations, he demanded $5.7 billion as a down payment for his $25 billion wall. Then, seeing the misery the shutdown caused, he relented and signed essentially the same spending legislation that had been passed before and that he had rejected, though it was only for three weeks. He continued to demand $5.7 billion, but all Congress would give him was $1.4 billion for border security, much of it not for a wall and none of it for where he wants to build.

After he signed the legislation with little money for the wall, he signed an executive order declaring a national emergency at the U.S.-Mexico border. He described the migrants there as being engaged in an “invasion,” so he ordered the departments of Defense and Homeland Security to divert unspent appropriations, money authorized by Congress for other purposes, to building a wall.

Was it legal for him to do that? In a word: No. As my colleagues at The Wall Street Journal wrote last week: President Trump, meet Justice Jackson. Robert Jackson was the last attorney general of the United States and the last justice of the U.S. Supreme Court never to have graduated from law school. He was also a gifted jurist who played a pivotal role in a famous case in 1952.

In 1952, when American steelworkers went on strike and the U.S. military was fighting the Korean War, President Harry Truman asked Congress for the authority to occupy the steel mills and pay nonunion workers to replace the strikers. When Congress refused, Truman declared a state of emergency and directed his secretary of commerce, Charles Sawyer, to hire workers at federal expense to operate the mills.

When the mills’ owners challenged Truman’s order, a federal district judge enjoined the president from enforcing it, and the Supreme Court upheld the injunction. Youngstown Sheet & Tube v. Sawyer, known as the Steel Seizure Case, held that the president was without authority to occupy private property and pay others to do so without express appropriations from Congress because the Constitution defines clearly that no federal dollars can be spent without an appropriation by Congress.

Now, back to Justice Jackson. Rarely in Supreme Court history has a concurring opinion been cited and relied upon by future courts more than the majority opinion, but this case is the exception. In concurring with the majority on the court, Justice Jackson offered his now iconic views of the presidency vis-a-vis Congress under the Constitution.

When the president acts pursuant to authority granted to him by the Congress in an area of government delegated to him by the Constitution, his authority is at its peak, and he is free to exercise it as he sees fit. When he acts in an area as to which the Congress has been silent, he acts in a twilight zone and can succeed only if the area of his behavior is delegated to him under the Constitution and if he enjoys broad public support.

But when the president acts in an area that the Constitution gives exclusively to Congress — such as spending money — and when he acts in defiance of Congress, his acts are unconstitutional and are to be enjoined.

Years later, Justice Anthony Kennedy would explain that presidents cannot act as if they were Congress any more than Congress can act as if it were the president. They cannot constitutionally exchange roles voluntarily, much less by defiance. This underscores the separation of powers. It is the most integral unique aspect of our Constitution. James Madison argued that it preserves personal liberty by keeping both the president and the Congress in check — even if it means they are sometimes at tension with each other.

President Trump’s emergency declaration would be viable, though probably unsubstantiated factually, if it did not involve spending money. But by spending money not unauthorized by Congress, he has failed to uphold the Constitution, which he has sworn to preserve, protect and defend.

Copyright 2019 Andrew P. Napolitano. Distributed by

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  1. Napolitano….you filthy homosexual whop hedgehog……We know you are waging Democratic Party race war against THE HISTORIC NATIVE BORN WHITE AMERICAN MAJORITY WORKING CLASS….And it is through this mindset that you interpret the Constitution…..

  2. A123 says:

    Trumps is no more “Brazen and Unconstitutional” that Obama, Bush, and Clinton.

    Congress delegated massive authority to the Executive branch via the War Powers Act, National Emergencies Act, and other similar pieces of legislation. While almost certainly unwise, these have been used for decades by both parties and have been unchallenged or Court affirmed.

    The amount (versus the total budget) of appropriated funds being redeployed within the current context of border security is not large. Thus, there is little chance that the Courts will intervene now. Those same courts created a precedent when they had the opportunity and did not intercede when higher dollar amounts were reallocated in the past.

    Bottom line, the only way to reign in these executive powers is to change the laws that give all Presidents massive amounts of discretionary authority. Congress created this mess by passing unwise laws and they are going to have to fix what they broke by passing laws that unwind those mistakes. And, with the current polarization in Congress, chances of that happening soon are slim to nil.

    • Replies: @anonymous
    , @CMC
  3. Think about what this midget homosexual whop hedgehog former judge and Chinese “American” Federal Judges are saying:When America was racially 90 percent NATIVE BORN WHITE AMERICAN….This demographic order-of-things- was a violation of the US Constitution…..

    2019 America=rule by homosexual Reagan-Bush appointed Federal Judges+Chinese “American” Federal Judges….

  4. anonymous[340] • Disclaimer says:

    polarization = perfection

    The Congress will remain content to cede “foreign policy” (i.e., overseas operations of the Empire) to the Chief and divisive domestic issues to the Nine Robed Penumbralators, saving its time and energy for grandstanding hearings and other Red v Blue kabuki.

    • Agree: Bubba
  5. I saw someplace that Trump can build a border fence to stop drug runners, which would as a side-effect keep out illegal border jumpers and potential Democrat voters, under a law passed by Congress under George W. Bush. So, if Trump is acting under a law already passed by Congress; he cannot be said to be acting unconstitutionally unless that law, itself, is unconstitutional.

    Congress may have been Republican controlled, but it was full of Republicans who are as much enemies of Trump as any Democrat and as committed to open borders as Nancy Pelosi.

    I would also suspect that the highest political ambition of many Congresscritters is to whitewash Benedict Arnold and make him look like a loyal patriotic American.

  6. Trump knows that the National Emergency Declaration will fail to produce a wall.

    The scam works this way: promise the electorate a wall, (largely symbolic, but part of a larger promise to curb immigration), spend the first two years of your term serving moneyed interests and the establishment, push the wall after midterm results render it politically impossible, threaten and declare a national emergency that has every chance of being enjoined by the courts, blame “Obama judges” for the failure to build a wall. The hope here is that enough of the uneducated electorate will be duped when the time comes to return to the ballot box.

    Trump played the political game better than anyone. He won election by preaching populism before spending his term serving the plutocracy. Moreover, he is the Manchurian candidate (now President) for Israel.

  7. Dandy Andy is a poofter…….Poofters needs the anti-poofter MUZZIE LEGALS to vote the Democratic Poofters into power………..down the road…..the MUZZIE Americans will work things out with the Poofters like they do it in Iran:On top of a tall building….the Poofters screaming in short-wave-length-pitch-Doppler Shifted on the way on down…..The MUZZIE’s call it pop art splattered on the asphalt …….waaaaaaaaaay down below… honor of the PROPHET…..

    • LOL: Stonehands
  8. KenH says:

    Years later, Justice Anthony Kennedy would explain that presidents cannot act as if they were Congress any more than Congress can act as if it were the president. They cannot constitutionally exchange roles voluntarily, much less by defiance.

    And SCOTUS cannot act as if they are the Congress and the President which they and lower courts so often do. There’s a whole lot of usurping going on these days and federal courts are just as guilty as the other two branches.

    Judge nappy obviously has a blind spot for judges and believes they are virtually supreme beings unlike the lowly mortals in the Congress, the current president or in flyover country.

  9. CMC says:

    Congress delegated massive authority to the Executive branch via the War Powers Act, National Emergencies Act, and other similar pieces of legislation.

    Yeah The Judge’s argument here is fatally flawed for not addressing this simple fact. It’s as if Congress already authorized some petty cash accounts —which, in the grand scheme of things is all we’re talking about here —you know, ‘a billion here and a billion there and pretty soon you’re talking about real money.’ Congress established those accounts. Trump is dipping into them. Big whoop. If the dipping is really that horrible, can’t Congress change the law and defund these emergency petty cash accounts? If so, wouldn’t this be a political question the judiciary should stay out of?

    • Agree: Joseph Doaks
  10. @KenH

    Judge nappy obviously has a blind spot for judges and believes they are virtually supreme beings unlike the lowly mortals in the Congress, the current president or in flyover country.

    You are hinting that judges are not gods. Take care — they hate atheists.


  11. buckwheat says:

    This asshole Napolitano gets more inane by the moment. When this jerkoff comes on TV I want to puke. Next thing you know he’ll be praising the bug eyed liberal nitwit AOC. Come to think of it they both act alike. Childish opinions that they both like to pretend is fact…..

  12. @KenH

    Judge nappy

    Let’s have some fun with this. In Britain a nappy is a diaper. Could one say it’s entirely appropriate for a poopy opinion by a shithead?

  13. APilgrim says:

    This 2-bit-hack actually considers himself a judge.

    He would not make a pimple on a judge’s butt.

  14. Judge Nap took Faux Jews, that is Fox News’s shekels to become a turn-coat/Never-Trumper. He is a man who spent his life in the law (hot-air, navel-gazing, how many angels can dance on a pin-head philosophizing, etc). POTUS Trump has the absolute authority to build the wall without any interference from the Legislative or Judicial branches. I wonder how much joo silver he took to become a turn-coat?

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