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Border Security Bill: Debate Furies Over U.S. Presidential “Emergency Powers”

Well it's clear one side is losing and that's the American public, and particularly the hundreds of thousands of federal workers who are not being paid or who are not going to work. In terms of the political actors, you know, the polling that we have suggests that most Americans blame President Trump for the shutdown.

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A U.S. Border Patrol agent rides a vehicle on the beach in San Diego, Jan. 9, 2019, seen through the border wall from Tijuana, Mexico. VOA

U.S. President Donald Trump will sign a border security bill, averting a government shutdown on Friday, but plans to formally declare the southern U.S. border a “national emergency,” Senate Majority Leader Mitch McConnell said Thursday.

The declaration would clear the way for Trump to authorize new funding for a permanent physical barrier. The move would end contentious negotiations with Congress over funding for the wall, but some legal analysts worry it will set a dangerous precedent for presidents trying to negotiate with Congress.

In January, during a 35-day partial government shutdown caused by a dispute over border wall funding, VOA spoke with John Hudak, deputy director of the Center for Effective Public Management at The Brooking Institute, about the legal issues around a possible emergency declaration by the president.

QUESTION: What powers does a president have to declare a national emergency? Could he simply order government funds to be used to build a border wall?

So there are really two questions here. First, under the national emergencies act, the president has a fairly broad power to declare a national emergency. Now the declaration of that emergency is simply that — a declaration. And according to a pretty firm reading of that law, it’s hard to see where there is an exception to the president’s ability to do it.

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In terms of the political actors, you know, the polling that we have suggests that most Americans blame President Trump for the shutdown. Pixabay

The next part of that, though, involves the powers that the president can exercise under that law and there are obvious limitations on that, constitutional limitations and other limitations within the law that the president can’t violate. And unfortunately, or perhaps fortunately, we haven’t experienced serious questions about presidential power in this space. So it’s really left as an open question right now, in terms of the extent of presidential power that courts will need to sort out.

Q: Could Democrats block this in Congress? Is there any constitutional precedent for presidents simply going around Congress to fund a priority policy item?

So there is, within the law, the ability of Congress to stop a national emergency. It requires both houses of Congress to vote to say that the national emergency is over. Now democrats can certainly do that alone, in the House. They cannot, however, do it alone in the Senate, it would require several Republican votes.

However, this is the type of exercise of executive power that leaves a lot of Republicans uneasy. And you’re already starting to see those conversations among Senate Republicans, saying that if we’re all right with President Trump doing this over a border wall, would we also be all right with a Democratic president doing this over climate change or other issues?

And so I think it remains to be seen whether Congress will have the votes to stop presidential action in this area, whether they’ll have the political will to do it. But they certainly have the power to stop this type of behavior.

To the second part of your question, you know, presidents have tried to go around Congress in terms of spending money in the past or even moving money around within or across budget lines or accounts in the past.

And frequently presidents are stopped because the spending power in the constitution rests with the Congress and so this creates a real challenge for President Trump if he wants to start moving funds or re-appropriating funds or using funds that are not even appropriated, pushing up against that constitutional protection against that power. So he might have the power to declare a national emergency, but he cannot usurp the Constitution in the exercise of powers during that emergency.

The entrance to the Smithsonian's National Gallery of Art is padlocked as a partial government shutdown continues, in Washington, U.S., Jan. 7, 2019.
The entrance to the Smithsonian’s National Gallery of Art is padlocked as a partial government shutdown continues, in Washington, U.S., Jan. 7, 2019. VOA

Q: On the politics of the current shutdown, is one side or the other winning? Which sides appears to have an advantage at the moment? How does it end?

Well it’s clear one side is losing and that’s the American public, and particularly the hundreds of thousands of federal workers who are not being paid or who are not going to work. In terms of the political actors, you know, the polling that we have suggests that most Americans blame President Trump for the shutdown.

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A smaller percentage of Americans blame congressional Democrats and smaller still blame congressional Republicans. I think a lot of Americans look at this skeptically and say, “What has changed between the beginning of the president’s term and now that makes this such a dire emergency?” And I think it leaves a lot of Americans scratching their head. President Trump is playing to his base here, but unfortunately his base is a small percentage of the population. And most of the rest of the population is not with him on this issue of the wall. (VOA)

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President Donald Trump Can Begin Steps to Pull United States Out of Landmark Paris Climate Agreement

It was negotiated in 2015 with lots of prodding by the United States and China and went into effect Nov. 4, 2016

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President, Donald Trump, United States
In the Paris agreement, nearly 200 countries set their own national targets for reducing or controlling pollution of heat-trapping gases Wikimedia Commons

For more than two years President Donald Trump has talked about pulling the United States out of the landmark Paris climate agreement. Starting Monday he finally can do something about it.

Even then, though, the withdrawal process takes a year and wouldn’t become official until at least the day after the 2020 presidential election.

In the Paris agreement, nearly 200 countries set their own national targets for reducing or controlling pollution of heat-trapping gases. It was negotiated in 2015 with lots of prodding by the United States and China and went into effect Nov. 4, 2016.

The terms of the deal say no country can withdraw in the first three years. So Monday is the first time the U.S. could actually start the withdrawal process, which begins with a letter to the United Nations. And it doesn’t become official for a year after that, which leads to the day after the election.

President, Donald Trump, United States
Youths demonstrate for climate change during the “Fridays for Future” school strike, in front of the Ecology Ministry in Paris, France, Feb. 15, 2019. VOA

If someone other than Trump wins in 2020, the next president could get back in the deal in just 30 days and plan to cut carbon pollution, said Andrew Light, a former Obama State Department climate negotiator now at the nonprofit World Resources Institute.

Light and other experts say the withdrawal by the United States, the second biggest climate polluter and world’s largest economy, will hurt efforts to fight global warming.

“Global objectives can’t be met unless everybody does their part and the U.S. has to play the game,” said Appalachian State University environmental sciences professor Gregg Marland, who is part of a global effort to track carbon dioxide emissions. “We’re the second biggest player. What happens to the game if we take our ball and go home?”

Someone else, probably the biggest polluter China, will take over leadership in the global fight, said MIT economist Jake Jacoby, who co-founded the MIT Joint Program on the Science and Policy of Global Change.

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The penalty for the U.S. “is not in economic loss. The penalty is in shame, in discrediting U.S. leadership,” Jacoby said.

Asked what the U.S. plans next, State Department spokesman James Dewey on Friday emailed only this: “The U.S. position with respect to the Paris Agreement has not changed. The United States intends to withdraw from the Paris Agreement.”

The agreement set goals of preventing another 0.5 degrees Celsius to 1 degree Celsius of warming from current levels. Even the pledges made in 2015 weren’t enough to prevent those levels of warming.

The deal calls for nations to come up with more ambitious pollution cuts every five years, starting in November 2020 in at a meeting in Scotland. Because of the expected withdrawal, the U.S. role in 2020 negotiations will be reduced, Light said.

President, Donald Trump, United States
Even then, though, the withdrawal process takes a year and wouldn’t become official until at least the day after the 2020 presidential election. Pixabay

Climate change, caused by the burning of coal, oil and gas, has already warmed the world by 1 degree Celsius since the late 1800s, caused massive melting of ice globally, triggered weather extremes and changed ocean chemistry. And scientists say, depending on how much carbon dioxide is emitted, it will only get worse by the end of the century with temperatures jumping by several degrees and oceans rising by close one meter.

Trump has been promising to pull out of the Paris deal since 2017, often mischaracterizing the terms of the agreement, which are voluntary. In October, he called it a massive wealth transfer from America to other nations and said it was one-sided

That’s not the case, experts said.

For example, the U.S. goal – set by Barack Obama’s administration – had been to reduce carbon dioxide emission in 2025 by 26% to 28% compared to 2005 levels. This translates to about 15% compared to 1990 levels.

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The European Union’s goal was to cut carbon pollution in 2030 by 40% compared to 1990 levels, which is greater than America’s pledge, said Stanford University’s Rob Jackson, who chairs the Global Carbon Project, a group of scientists that track carbon emissions worldwide. The United Kingdom has already exceeded that goal, he said.

“The U.S. agreement is not a tax on the American people. There is no massive wealth transfer,” said Climate Advisers CEO Nigel Purvis, who was a lead State Department climate negotiator in the Clinton and George W. Bush administrations. “In fact, the agreement obligates no country to make any financial payments.”

Formally getting out of the Paris agreement is bad, but at this point after years of rhetoric is more symbolic than anything, said Georgia Tech climate scientist Kim Cobb. She said she is more worried about other Trump carbon pollution actions, such as fighting California’s tougher emissions and mileage standards and rollbacks of coal fired power plant regulations.

The U.S. was not on track to reach its Paris pledge, according to the federal Energy Information Administration’s latest projections.

The EIA projects that in 2025 emissions will be at 4959 million metric tons of carbon dioxide, 17% below 2005 levels, about 500 million tons short of the goal. Emissions in 2018 were nearly 2% higher than in 2016, the agency’s latest energy outlook says. That spike likely was from extreme weather and economic growth, Marland and Jacoby said. (VOA)