President Donald Trump’s national emergency declaration has not been well-received, including by his top defender Alan Dershowitz, who criticized the unconstitutional action during a radio show appearance over the weekend.
Trump issued the declaration on Friday in a long rant on the White House lawn in which he rejected his own administration’s immigration statistics so that he can declare a fake emergency to usurp Congress’ power of the purse, which gives the legislative branch the sole power to appropriate taxpayer dollars to various projects, none of which are a wall on the southern border. Trump then proceeded to demonstrate how fake the emergency is by jetting off to Mar-a-Lago to play golf.
Despite being a cheerleader for Trump over the past two years, even going so far as to attack the Russia investigation, the FBI and the Justice Department, Dershowitz apparently draws the line at unnecessary national emergency declarations.
“My own view is that it was a mistake to do it,” the law professor said. “I think emergencies are things that happened suddenly. The problems with immigration are long term.”
Indeed, if the United States were being invaded by a hostile enemy like Russia Trump would be within his power to declare an emergency. But illegal immigration is not an emergency. In fact, it has been declining for several years and is at a record low today. Furthermore, his wall won’t even stop drugs or crime as he claims.
Dershowitz went on to slam Trump for subverting the Constitution.
“The Constitution requires that all spending bills originate in the House of Representatives,” he said. “This is a way of circumventing that provision of the Constitution.”
And like Rep. Adam Schiff (D-Calif.) and Harvard Law professor Lawrence Lessig, he predicted the declaration will be blocked by the courts.
“There will be a lawsuit,” he said. “No doubt about it. It will be tied up in the courts for a long time. Ultimately, the Supreme Court will have to decide. And it’s unclear how the court will decide because it’s a new Supreme Court.”
Here’s the audio:
However, even the Supreme Court must carefully consider their ruling. Despite Trump’s two conservative nominees, Chief Justice John Roberts is likely going to be the swing vote who decides whether Trump’s action constitutes an actual emergency that is not an overreach of power. Precedent dictates that Trump overstepped his authority, with most experts pointing to former President Harry Truman’s attempt to seize steel mills during the Korean War as a prime example. The Supreme Court ruled that even during wartime the president just can’t declare a frivolous national emergency to get what he wants.
Also, if the conservatives on the high court rule in Trump’s favor, they will have opened the door for a Democratic president to declare a real national emergency to deal with issues like gun violence, infrastructure, and healthcare. Because if Trump can declare a fake emergency, the next president can certainly declare a real one. That should put the Supreme Court on notice just enough to force them to block Trump lest they be accused of hypocrisy.
Alan Dershowitz is a Trump defender. That much is clear. But Trump has gone too far this time and even Dershowitz knows it.
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