When Can President Declare a "National Emergency?"

The U.S. president takes an oath to "faithfully execute" his office, and "to preserve, protect and defend the Constitution."


President Donald Trump has declared a national emergency to prevent an invasion of one million immigrants expected to illegally cross our border with Mexico this year. He also plans to utilize roughly $6 billion from the Defense Department budget, as well as, lesser amounts from other sources to "build the wall."


Opponents of his emergency declaration insist the president has no constitutional power to appropriate moneys from the U.S. Treasury or to use moneys appropriated by Congress for one purpose for another purpose that the president likes better.


If the president is doing either of those things, his critics are correct. Attorney General William Barr disagrees and says that the president's order is “clearly authorized under the law and consistent with past precedent.”


Barr states that the situation at the border “is exactly the type of situation the president is allowed to address” under the National Emergencies Act of 1976, which sets out a president’s emergency powers.


In this regard, a brief examination of the powers expressly given to the president by the Constitution is helpful to understand the contrary positions.


The Constitution gives the president power to:


-- Approve or veto laws passed by Congress;


-- Be commander-in-chief of the Army, Navy and state militias when in federal service;


-- Require written opinions from principal officers of the executive department;


-- Grant pardons and reprieves, except in case of impeachment;


-- Make treaties, with the consent of two-thirds of the Senate;


-- Nominate ambassadors, Supreme Court judges, etc.;


-- Give Congress information, re: the State of the Union.


-- Recommend measures he deems necessary to Congress and limited powers to convene and adjourn Congress;

-- Receive ambassadors;


-- Commission officers of the United States;


-- Take care that the laws be faithfully executed.


Opponents of the president's declaration argue that if Congress appropriates money for one purpose, none of the previously listed powers would authorize the president to take that money and use it for a different purpose.


That argument, as far as it goes, is correct. When you deposit money in your savings account at the bank, you do not authorize the teller to use your money to take a personal vacation to Hawaii. That would be embezzlement, and the president using funds appropriated for one specific purpose for another would be roughly akin to embezzlement.


But what if Congress appropriates funds for the president to use according to his discretion to meet national emergencies? Barr is saying the president is not using moneys appropriated by Congress solely for purpose A, for purpose B. He is saying three other things:


1. Congress gave the president express power to declare national emergencies.


2. This president's national emergency declaration is an exercise of presidential discretion entirely consistent with past precedents.


3. Congress has specifically appropriated funds to be used at the president's discretion to meet national emergencies.


When Congress gives a president express power to exercise his discretion to declare a National Emergency, and when the president declares an emergency, the president is not operating under a vague claim of "inherent" or "implied" presidential powers. He is acting under a specific delegation of power granted by Congress.


One thing is absolutely clear in this political battle: Congress has given presidents broad discretion to say what amounts to a national emergency. The 1976 National Emergencies Act vested that discretion in the president, and not in any federal judge or anyone else.


And there is no claim that the act anywhere states that the president cannot exercise his discretion if he adjudges that one million people entering this country illegally is a national emergency.


The real question, therefore, that will come before the courts is: Did Congress appropriate funds, or authorize the president to re-allocate appropriated funds to be used at the president's discretion to meet a national emergency?


If it did, the president wins. If not, he loses. When Congress specifically directs the president to exercise his discretion when he finds that a national emergency exists, when he does so, he operates under his express Constitutional power to "take care that the laws be faithfully executed.”


Similarly, if he is given discretion to use funds appropriated for defense as he deems best, and he does so, he is also operating under his express Constitutional power as commander-in-chief.

Posted: QCOline.com   April 18, 2019

Copyright 2019, John Donald O'Shea

Pause

Current Time0:00

/

Duration Time0:00

Stream TypeLIVE

Loaded: 0%

Progress: 0%

0:00

Fullscreen

00:00

Mute

-- Receive ambassadors;

-- Commission officers of the United States;

-- Take care that the laws be faithfully executed.

Opponents of the president's declaration argue that if Congress appropriates money for one purpose, none of the previously listed powers would authorize the president to take that money and use it for a different purpose.

That argument, as far as it goes, is correct. When you deposit money in your savings account at the bank, you do not authorize the teller to use your money to take a personal vacation to Hawaii. That would be embezzlement, and the president using funds appropriated for one specific purpose for another would be roughly akin to embezzlement.

But what if Congress appropriates funds for the president to use according to his discretion to meet national emergencies? Barr is saying the president is not using moneys appropriated by Congress solely for purpose A, for purpose B. He is saying three other things:

1. Congress gave the president express power to declare national emergencies.

2. This president's national emergency declaration is an exercise of presidential discretion entirely consistent with past precedents.

3. Congress has specifically appropriated funds to be used at the president's discretion to meet national emergencies.

When Congress gives a president express power to exercise his discretion to declare a National Emergency, and when the president declares an emergency, the president is not operating under a vague claim of "inherent" or "implied" presidential powers. He is acting under a specific delegation of power granted by Congress.

One thing is absolutely clear in this political battle: Congress has given presidents broad discretion to say what amounts to a national emergency. The 1976 National Emergencies Act vested that discretion in the president, and not in any federal judge or anyone else.

And there is no claim that the act anywhere states that the president cannot exercise his discretion if he adjudges that one million people entering this country illegally is a national emergency.

The real question, therefore, that will come before the courts is: Did Congress appropriate funds, or authorize the president to re-allocate appropriated funds to be used at the president's discretion to meet a national emergency?

If it did, the president wins. If not, he loses. When Congress specifically directs the president to exercise his discretion when he finds that a national emergency exists, when he does so, he operates under his express Constitutional power to "take care that the laws be faithfully executed.”

Similarly, if he is given discretion to use funds appropriated for defense as he deems best, and he does so, he is also operating under his express Constitutional power as commander-in-chief.

The Green New Deal, Socialism and Slavery

What exactly is slavery? Who is a slave?

Most Americans undoubtedly define slavery with reference to our own experience in the antebellum South, where the black population, with few exceptions, was stripped of all civil rights and forced to labor as legal property on their masters' plantations.

But can one be a slave without being the legal property of another? What if one retains at least some civil rights?

The Book of Exodus paints a somewhat different picture of slavery: "The Egyptians made the Israelites their slaves. They appointed brutal slave drivers over them. ... They forced them to build cities ... worked the people of Israel without mercy ... made their lives bitter, forcing them to mix mortar, make bricks and do all the work in the fields."

The people enslaved in Egypt did not live on plantations. They had their own homes. They weren't the property of a particular slave owner; they were forced to labor for the Egyptian state. They enjoyed at least some civil rights. They could own homes and personal property. They could marry, at least bear female children, and practice their Jewish religion. So you doubt that the state, as opposed to an individual, can be a slave owner?

Were the Russian people forced to do hard labor in the gulags anything other than slaves? The question, really, is at what point does the state so control a man's life as to render him a slave?

Nobody seriously believes that when the state imposes a tax in the amount necessary to provide for the national defense, or the necessary expense of government, that such a tax makes citizens slaves. During WWII, the top marginal federal income tax rate, was 94 percent on income over $200,000. Nobody cried slavery! Everybody knew the war had to be won. Young men were "financing" it with their blood. Rich older men, by their taxes.

As early as 1828, the use of tariffs (taxes) to support Northern manufacturers provoked bitter protest from the South. The South argued that the tariff was imposed, not to support the general welfare of the entire nation, but to subsidize New England manufacturers, at the expense of southern farmers. It made them slaves of the north -- like the Jews in biblical Egypt.

Now, Sen. Elizabeth Warren, D-Mass., believes the top marginal tax rate should be more than 50 percent. Rep. Alexandria Ocasio-Cortez believes it should be 70 percent. Julian Castro, a former Obama administration cabinet member, wants 90 percent.Warren has also proposed an additional wealth tax on billionaires.

But if you labor to earn money, where is the justice in the government seizing 70 percent or 90 percent of it? It is robbery when your neighbor seizes for himself 70 percent to 90 percent of your earnings at gunpoint. A claim that the taking was a mere act of social justice affords him no legal justification. So what principle justifies the government doing for your neighbor via taxation what he can't do for himself with a gun?

In Rerum Novarem, Pope Leo XIII (1891) wrote, "The Socialists, working on the poor man's envy of the rich, are striving to do away with private property, and contend that individual possessions should become the common property of all, to be administered by the State."

Pope Leo rejected that as "emphatically unjust." 

Compare AOC's notion of social justice, as embodied in her Green New Deal, with Pope Leo's in Rerum Novarem. AOC and her GND would guarantee economic security for all those who are "unwilling to work." Pope Leo, by way of contrast, wrote "if a family finds itself in exceeding distress ... without any prospect of extricating itself, it is right that extreme necessity be met by public aid, since each family is a part of the commonwealth."

Those who espouse the GND will insist that it is meant only to provide a basic minimum income for those "unwilling to work." Rather like the minimum wage.

Nobody quarrels with the need to provide a basic income for the aged and disabled. But why does society have any duty to any able-bodied person who chooses not to work? Doesn't every able-bodied citizens have a duty to do his fair share to provide for the general welfare?

Why does one who earns have any duty to share his earnings with a neighbor who chooses not to work and do his fair share as a citizen? If 90 percent of Americans choose not to work, should the remaining 10 percent support them? What if 50 percent make that choice?

At what point does taxing the laborer to support the parasite transform the U.S. government into Pharaoh's Egypt?


Posted: QCOline.com   April 11, 2019

Copyright 2019, John Donald O'Shea

In Illinois - Beware "Tax Tigers" and "Trojan Horses!"

Illinois Gov. J.B. Pritzker wants to replace Illinois's flat-rate income tax with a "graduated income tax."


Here are his proposed tax brackets on every dollar earned:


-- Up to $10,000, 4.75 percent



-- $10,001 to $100,000, 4.9 percent


-- $100,001 to $250,000, 4.95 percent


-- $250,001 to $500,000, 7.75 percent


-- $500,001 to $1 million, 7.85 percent


-- $1 million-plus, 7.95 percent.


So what would the savings be to the taxpayer who earns exactly $10,000? $20! What would the savings be to the taxpayer who earns exactly $100,000? A tad less than $50. (The first $10,000 would be taxed at 4.75 percent.)

Those paying the tax up to $250,000 would also see their taxes decrease exactly the same as those paying taxes on $100,000.


Since I believe I should not be able to vote to raise your taxes, unless I at the same time vote to raise my own taxes by the same percentage, I oppose any graduated income tax and strongly support keeping the Illinois flat-rate income tax.


A quick look at the graduated federal income tax makes clear the reason for my concern. Approximately 76.4 million, or 44.4 percent of Americans will pay no federal income tax in 2018. Yet that 44.4 percent can vote to raise their neighbor's federal income tax, while at the same time exempting themselves.

Illinois now has a Democratic governor. Democrats outnumber Republicans in the Illinois Senate 40-19, and 74-44 in the Illinois House. If Democrats stick together, Republicans can't stop Democrats from recommending a Constitutional amendment to Illinois voters to replace the current flat-rate tax, with a graduated income tax.

If 60 percent of both Senate and House members vote to put the issue before the voters, it will be on the ballot in the 2020 Election. All it will take is 36 of 40 Democrats in the Senate, and 71 of 74 Democrats in the House. (I give Republicans a pass as an Illinois "endangered species!")

Once the Legislature is given power to enact a graduated state income tax, all of Pritzker's promises -- his proposed rates -- mean absolutely nothing. The following, day, the General Assembly will have unfettered power to enact a truly progressive graduated income tax with whatever rates it pleases.


If you want to see how the old shell game is played, just stand back and watch. You'll get a lesson from professionals in the art of bait and switch.


Our Democratic Legislature will have power, for example, to exempt the first $50,000 of income from the new Illinois income tax while, at the same time, taxing incomes over $50,000 at 10 percent, incomes over $100,000 at 20 percent, and incomes over $1 million at any rate it chooses (to the extent it is not already taxed by the feds). The Democrats will be able to create a whole new class of voters who pay no tax, but have power to vote to tax their neighbors without taxing themselves.


How long will it take for millionaires who object to paying higher taxes to move to Florida and other states without income taxes? Why would any millionaire in his right mind pay a 10 percent, 20 percent or 33 percent tax in Illinois when he escapes the tax altogether by leaving Illinois?


And do you really trust our Democratic Legislature to retrench? To use the new tax revenues to pay off Illinois debts? To shore up our foundering pension system? Or will this be a blank check for "progressives" to plunge headlong into implementing an Illinois version of the Green New Deal?


When the federal income tax was enacted in 1913, the lowest tax rate was 1 percent; the highest, 7 percent. Then, once the Trojan Horse was within the walls, things changed.

By 1918, a 77 percent tax was imposed on incomes over $1 million to finance WWI. (When young men are shedding their blood to save the country, fairness requires the rich to shed their income to save the country.)


Today every Progressive Democrat has his own soak-the-rich proposal. Rep. Alexandria Ocasio-Cortez, D-N.Y., is calling for a 70 percent rate on incomes in excess of $10 million. Not content with taxing incomes, Sen. Elizabeth Warren, D-Mass., wants to tax "wealth."


You cannot escape paying federal income tax by moving from Illinois to Florida, but you can escape Illinois income taxes by moving. And once the rich flee, who do you think will be left to pay?


Dining with tigers is dangerous!


Posted: QCOline.com   April 4, 2019

Copyright 2019, John Donald O'Shea