executive power

William C. Banks Authors OpEd on Southern Border Crisis for Newsday

Opinion: Declaration would defy Congress and abuse power

By William C. Banks

(Newsday | Feb. 10, 2019) President Donald Trump has described the congressional negotiations over his request for $5.7 billion to fund a Southern border wall as a “waste of time.”

Intended to stop the practice of endless states of emergency, the law gave them new life. Today, there are 28 national emergencies, renewed for decades by presidents.

He has repeatedly insisted that he can and will build the wall after declaring a national emergency at the border. If the president proceeds, he will undermine the role of Congress in our constitutional system and make a mockery of the uses of this extraordinary emergency power as exercised by modern presidents.

Rhetoric and politics aside, consider a dispassionate assessment of what the law permits. In the end, Congress may already have given Trump the authority he needs to build his wall.

The president exercises whatever powers he has from the Constitution or an act of Congress. The Constitution does not confer any general emergency powers, and only permits suspending the writ of habeas corpus “when in Cases of Rebellion or Invasion the public Safety may require it.” When it comes to appropriating public funds, the Constitution anchors the power in Congress. The Congress appropriates funds, and the president spends them.

Historically, Congress provided generous statutory authorities that allow the president to act and spend in circumstances that rise to the level of national emergency. By 1973, there were more than 470 such laws, most of them vestiges of bygone crises. In a stroke of Watergate-era good government, Congress enacted the National Emergencies Act in 1976 to repeal all emergency laws and create procedures for future presidents to act responsibly in a crisis. However, while enacted with the best of intentions to rein in misuse of presidential emergency powers, the law has, in a backhanded way, enabled considerable presidential initiatives.

The National Emergencies Act requires presidents to specify the statutory authorities they intend to use after declaring a national emergency, make public notice of the emergency declaration and renew such authorities annually in writing to Congress. However, the law requires Congress to act (with a two-thirds majority to overcome a presidential veto) to terminate a declared emergency and allows declared emergencies to be renewed annually by the president.

Intended to stop the practice of endless states of emergency, the law gave them new life. Today, there are 28 national emergencies, renewed for decades by presidents, supported by 136 statutes the president can invoke after an emergency declaration. Congress has never attempted to terminate an emergency declared pursuant to the National Emergencies Act.

Nor are there criteria to guide or limit the president in deciding what constitutes a national emergency. Could Trump declare a national emergency at the Southern border? Yes, unquestionably. Could he then find the funds from among the 136 statutes to order construction of the wall? Yes, arguably …

Read the full OpEd.

Cronkite News Discusses a “National Emergency” with William C. Banks

Experts give 4 reasons why Trump can’t declare a national emergency to build a wall

(Cronkite News/Arizona PBS | Feb. 5, 2019) President Donald Trump has hinted there’s a “good chance” he will declare a national emergency at the southern border during his State of the Union address Tuesday in order to build a wall.

“(The border) is a civilian operation,” Banks said. “We don’t mix law enforcement and the military here in the U.S.”

Experts, however, believe there are obstacles to using a national emergency to build a wall, which Trump has promised since he entered the race for the presidency in 2015.

Cronkite News reached out to Liza Goitein, a co-director of the Liberty and National Security Program at the Brennan Center for Justice in Washington, D.C., and William Banks, a professor emeritus of law and the founding director of the Institute for National Security and Counterterrorism at Syracuse University. Both also appeared at a Jan. 16 panel discussion hosted by the Brennan Center about presidential emergency powers …

No. 3: Troops can only construct something for military purposes

Trump also has deployed active-duty troops to the border twice since late October, and part of their duties has been to fortify existing barriers. However, Banks said there are too many limitations for him to simply order a wall built by the military without congressional approval or appropriated funds.

“Military-construction authorities allow him to reallocate some authorized funds … but only for a military purpose,” Banks said. The president can only use Pentagon funds and can’t divert money from other U.S. appropriations, he said.

If the president were to unlock these military dollars by declaring a national emergency, Banks said “it might work.” He described how the Army Corp of Engineers would be the agency designing and building the wall, but the president has to persuade the courts in any legal challenge that the construction is for a military installation, which Banks called “a bit of a reach.”

“(The border) is a civilian operation,” Banks said. “We don’t mix law enforcement and the military here in the U.S.”

Senate Democrats introduced legislation Monday to block the president from using those same military funds “for the construction of barriers, land acquisition, or any other associated activities on the southern border without specific statutory authorization from Congress” …

Experts give 4 reasons why Trump can’t declare a national emergency to build a wall

Video: Brennan Center Symposium on Emergency Powers

(C-Span | Jan 18, 2019) On Jan. 9, 2019, the Brennan Center for Justice and the R Street Institute hosted a symposium in Washington, DC, to consider the history, application and scope of presidential emergency powers.

This portion of the symposium featured legal and policy experts—including INSCT Founding Director William C. Banks—who provided an overview of the range of executive powers that could be used by the president.

The Brennan Center’s Liberty and National Security Program Director Liza Goitein also addressed President Trump’s potential application of emergency powers to build a wall along the U.S.-Mexico border.

Emergency Powers

 

William C. Banks Discusses Limits to Emergency Powers with LA Times

Supreme Court has placed limits on presidential emergency powers, but that may not stop Trump

(Los Angeles Times | Jan. 9, 2019) More than a half century ago, the Supreme Court in one of its most famous decisions boldly put a check on executive power, one that has been cited repeatedly as proof the president cannot declare a national emergency to bypass Congress.

“Factually it is ludicrous to claim this is a national emergency, but who would have standing to challenge it?”

Many legal experts, however, say they are not confident the Constitution and the courts would stand in the way if President Trump were to declare a national emergency to fund a wall on the southern border. At issue is not the definition of an emergency, but the many expansions of presidential power written into law by Congress in recent decades.

When President Truman issued an order to seize control of the steel mills, no one questioned that the nation faced a true emergency. American troops had been pushed back in Korea, and a pending strike in the steel industry “would immediately jeopardize and imperil our national defense” and endanger “our soldiers, sailors and airmen engaged in combat in the field,” he declared in 1952.

But the high court stood firm and ruled the president did not have the power, acting on his own, to order the steel mills to keep running …

… Moreover, bringing a lawsuit in court requires an injured plaintiff who has standing. And the court has ruled that neither lawmakers nor taxpayers have standing to sue over how the government spends money.

“Factually it is ludicrous to claim this is a national emergency, but who would have standing to challenge it?” said Syracuse law professor William Banks. “It could be a property owner who says his land has been diminished in value.” If so, however, such a case may take time to develop.

It is not clear that the Supreme Court will be willing to take up such a dispute or stand in the way of the president.

In 1952, all the justices were Democratic appointees, but the 6-3 majority rebuked the actions of a Democratic president.

Read the full story.

 

State of Emergency: William C. Banks Guests on Renato Mariotti’s On Topic Podcast

State of Emergency: As the “Wall” Fight Looms, Has the Mueller Investigation Moved to its Final Stage?

(On Topic | Jan. 10, 2019) Renato and Patti discuss the president’s “emergency” powers, including the limits of those powers, how they can be challenged, and how they should be reformed, with Syracuse Law Professor William C. Banks. They also speak at length with MSNBC Legal Analyst Mimi Rocah about many recent developments in the Mueller investigation, including the revelation that former Trump campaign chair Paul Manafort provided private polling data to a Russian intelligence operative.

Visit the podcast webpage.

William C. Banks Contributes to The New York Times’ Emergency Powers Explainer

Trump’s National Emergency Powers and Border Wall, Explained

(The New York Times | Jan. 7, 2018) As the budget standoff between President Trump and congressional Democrats grinds into the third week of a partial government shutdown, the White House has floated the idea that Mr. Trump might invoke emergency powers to build his proposed wall on the Mexican border without lawmakers’ approval.

“The fundamental principle is that no president or official may spend funds that were not appropriated for that purpose.”

That route could resolve the immediate crisis by giving Mr. Trump a face-saving way to sign spending bills that do not include funding for his wall. But it would be an extraordinarily aggressive move — at a minimum, a violation of constitutional norms — that would most likely thrust the wall’s fate into the courts. Here is a primer on whether Mr. Trump can use emergency powers to proceed with the project without explicit congressional permission.

What are emergency powers?

The president has the authority to declare a national emergency, which activates enhancements to his executive powers by essentially creating exceptions to rules that normally constrain him. The idea is to enable the government to respond quickly to a crisis.

Although presidents have sometimes claimed that the Constitution gives them inherent powers to act beyond ordinary legal limits in an exigency, those claims tend to fare poorly when challenged in court.

But presidents are on firmer legal ground when they invoke statutes in which Congress delegated authorities to the executive branch that can be generated in emergencies. In a recent study, the Brennan Center for Justice at New York University School of Law identified 123 provisions of law granting presidents a range of such powers.

The National Emergencies Act, enacted during the post-Watergate reform era, regulates how presidents may invoke such powers. It requires them to formally declare a national emergency and tell Congress which statutes are being activated …

… In light of those statutes and similar ones that give presidents flexibility to redirect funds in a crisis, the Trump administration could point to serious arguments to back up Mr. Trump if he invokes emergency powers to build a wall, said William C. Banks, a Syracuse University law professor who helped write a 1994 book about tensions between the executive and legislative branches over security and spending, “National Security Law and the Power of the Purse.”

“The fundamental principle is that no president or official may spend funds that were not appropriated for that purpose,” he said. “But I think that it’s possible that the president could declare a national emergency and then rely on authority Congress has historically granted for exigencies to free up some funds to support constructing a barrier along the border” …

Read the full article. 

 

“Going About His Business:” Bloomberg Discusses the Mueller Probe’s Effect on the Midterms with William C. Banks

William Banks, a professor at Syracuse University Law School, discusses the latest progress in the Mueller Probe, and how the probe, which began in the spring of 2017, could impact the midterm elections.

https://www.bloomberg.com/news/audio/2018-10-16/affirmative-action-not-on-trial-in-harvard-case-podcast

Banks’ segment begins at 8m 25s. 

“Questions About Character”: William C. Banks Speaks to Bloomberg About Kavanaugh Probe

Trump Advocates “Very Comprehensive” Kavanaugh Probe

(Bloomberg Law | Oct. 1, 2018) William Banks, professor at Syracuse University Law School, discusses President Trump’s Monday comments, where he supported a “very comprehensive” investigation into sexual assault allegations against Supreme Court nominee Brett Kavanaugh. Plus, Bloomberg News Supreme Court reporter Greg Stohr, discusses the start of the Supreme Court’s fall term and how Kavanaugh’s confirmation is impacting the high court. They speak with Bloomberg’s Peter Barnes and Amy Morris.

https://www.bloomberg.com/news/audio/2018-10-01/trump-advocates-very-comprehensive-kavanaugh-probe-radio

“A Saturday Night Massacre on a Monday?” William C. Banks Speaks to Bloomberg Law

Rosenstein, Trump Set Thursday Meeting at White House

(Bloomberg Law | Sept. 24, 2018) William Banks, a professor at Syracuse University Law School, discusses Rod Rosenstein’s future in the Justice Department after Monday reports that he offered his verbal resignation to the White House. Plus, Steve Sanders, a professor at Indiana University Maurer School of Law, discusses Brett Kavanaugh’s Supreme Court confirmation, which is in further doubt on Monday after a second woman accused the appeals court judge of sexual misconduct. They speak with Bloomberg’s June Grasso.

https://www.bloomberg.com/news/audio/2018-09-24/rosenstein-trump-set-thursday-meeting-at-white-house-radio

 

William C. Banks Speaks to the Media About FISA Declassification

Trump: Declassified Russia probe papers expose ‘bad things’

(Associated Press | Sept. 18, 2019) President Donald Trump is flexing his executive power to declassify secret documents in the Russia investigation, an extraordinary move he says will ensure that “really bad things” at the FBI are exposed. But the decision, made against the backdrop of Trump’s spiraling outrage at the special counsel’s Russia investigation, may expose sensitive sources and methods and brush up against privacy law protections, experts say.

“The Privacy Act is a big hurdle here unless Congress takes control of the materials and tries to release them themselves.”

The order is likely to further divide the president from the intelligence agencies he oversees and raises new concerns that Trump is disclosing government secrets for his own political gain. Critics of the move say the president has a clear conflict by trying to discredit an investigation in which he himself is a subject …

… William Banks, a Syracuse University national security expert, said that by making the information public, Trump is essentially overruling the decisions of career officials intent on keeping it from foreign intelligence services, terrorist groups and other adversaries.

He said while there’s nothing to prevent Trump from releasing the bulk of the information identified by the White House, he may face some problems releasing the Russia-related text messages because of the federal Privacy Act, which governs the type of personal information the government can make public.

“The Privacy Act is a big hurdle here unless Congress takes control of the materials and tries to release them themselves,” Banks said.

The FBI earlier released in heavily redacted format 412 pages of surveillance applications and court orders related to Page. Monday’s declassification order covers 21 pages of a 101-page June 2017 application to renew the warrant — the last of four filed by the Justice Department. His communications were monitored for nearly a year starting in October 2016 …

Read the whole article.

Trump says declassifying Russia docs is about ‘total transparency,’ but some disagree

(WJLA ABC 7 | Sept. 18, 2019) President Donald Trump said Tuesday he wants “total transparency” in the investigation of Russian interference in the 2016 election, calling some of the details revealed so far “a disgrace to our nation,” but critics say his latest effort to shine light on the probe is a self-serving attempt to undermine special counsel Robert Mueller.

“If you want a more complete understanding of what went on here, you wouldn’t declassify two pages here or four pages there. You’d declassify all of it, and that’s not what they did.”

“This is a witch hunt,” Trump told reporters before a meeting with President Andrzej Duda of Poland. “Republicans are seeing it. The Democrats know it’s a witch hunt, too, but they don’t want to admit it because that’s not good politics for them. But it’s a terrible witch hunt, and it’s hurt our country.”

In a statement issued Monday night, White House Press Secretary Sarah Sanders announced the president is ordering the declassification of selected documents related to the FBI’s applications to a Foreign Intelligence and Surveillance Act court to conduct surveillance of Carter Page, a former adviser to Trump’s campaign, and text messages sent by several officials involved in the investigation. Sanders said Trump was acting “at the request of a number of committees of Congress, and for reasons of transparency” …

… “What’s being released here has been reviewed by officials in the executive branch already and they decided the documents should not be declassified,” said William Banks, former director of the Institute for National Security and Counterterrorism at Syracuse University.

National security law experts say there is no precedent for a commander in chief selectively declassifying materials from an investigation of his own conduct, but they agree it is within Trump’s authority to do so …

… According to Banks, FISA proceedings are secretive for good reason, and pulling back the curtain could demoralize intelligence and law enforcement officers.

“Anytime the FISA materials see the light of day, our adversaries can learn more about the processes we use to keep tabs on them,” he said …

… Experts and former DOJ officials have warned of the risk to intelligence-gathering methods in this investigation and others if the sources identified in the documents are exposed

House Intelligence Committee Chairman Devin Nunes, R-Calif., dismissed these concerns, telling Fox News host Laura Ingraham Monday night it is “laughable” to claim this declassification endangers national security.

“This is really full transparency for the American people,” Nunes said.

Banks rejected the notion that declassifying 21 hand-picked pages of the FISA applications is about “full transparency.”

“If you want a more complete understanding of what went on here, you wouldn’t declassify two pages here or four pages there. You’d declassify all of it, and that’s not what they did,” he said …

Read the whole article.