Thread by @willchamberlain

In what I'm sure is a complete surprise to everyone, @DavidAFrench has written an overwrought, melodramatic, and poorly reasoned piece on the national emergency legal question.

Let's begin the thread.

nationalreview.com/2019/01/defens…

Apparently, those lawyers who think there is clear statutory authority to reprogram funds to build the wall - like me, @Barnes_Law, @marklevinshow, and @jeastman714 - are "manufactur[ing] deceptive dreck" to "abuse and debase our constitutional system of government."

Let's just settle down.

Even the moderate, generally anti-Trump @lawfareblog concedes that pro-Wall commentators are advocating for executive action *within the statutory framework provided by Congress."

This is not about Article II. It's pure statutory interpretation.

French argues that Trump could have declared a national emergency when he stepped foot in the oval office, and that his failure to do so indicates that it would be unlawful.

This is silly.

I'm going to suggest something shocking.

The Trump administration has not been the most competently run organization in history.

I know, I know, crazy.

But seriously, it's not remotely surprising that WH lawyers hadn't taken a close look at emergency powers until recently.

I hadn't looked at emergency powers before last week. I suspect most of us are in the same boat.

Those who had looked at it - mainly liberals - were pointing out that Trump, in fact, would be able to access emergency powers without much trouble!

theatlantic.com/magazine/archi…

On to the meat of French's criticism.

He argues that there is "no fair reading of the *intent*" of the NEA to justify declaring a national emergency.

I'm sorry, I didn't realize "intent" was something you could find a "fair reading" of. Has David French abandoned textualism?

Justice Scalia had the best rejoinder to French's muddle.

Good textualists - like Justices Gorsuch and Kavanaugh, who French supported - look for the fairest reading of the *text*, and don't care about find a "fair reading" of "intent" (if that's even possible)

The fairest reading of the next of the NEA is simple.

The president has plenary authority to declare a national emergency under 50 USC § 1621.

If Congress disagrees, it can pass a joint resolution terminating the emergency, as per 50 USC § 1622.

Oh, but French points to the legislative history (!!!!!!) to say that the intent of the NEA was to *restrict* presidential power - implicitly arguing that this vague assertion of purpose defeats the clear statutory text.

This is the kind of legal argument I expect to read in an opinion from Justice Sotomayor - not in the pages of @NRO.

Justice Scalia would be rolling in his grave. Legislative history - committee reports - are not law.

Even on its own terms, French's legislative history argument is weak.

This intent - to constrain the President's powers - was manifested not in § 1621 or § 1622, but in 50 USC § 1631, which requires the President to invoke the specific emergency powers he intends to use.

The problem, from Congress's perspective, was not that the President could declare an emergency - but that he might have access to EVERY emergency power for EVERY emergency.

§ 1631 solves that.

And Trump is not proposing to take over the country. It's one funding maneuver.

Next, French argues about that Trump would be stretching the language in 33 USC § 2293 that mandates that the emergency "may require use of the Armed Forces"

This is just a bad argument. It seems obvious that ANY *border* crisis *might* require the use of the armed forces.

Like - what happens if, say, a caravan gets through? What happens if they use weapons to breach the border?

When Congress uses language like "requires or *may require*," that's explicitly permissive language.

Next, French argues that further construction of physical barriers on the border isn't "authorized."

He argues that the Secure Fence Act only authorized 700 miles of border fence, and that has been completed.

Here, French is simply wrong on the law. The 700 miles of border fence were *mandated*, not merely *authorized*, in the Secure Fence Act of 2006.

Federal law *authorizes* the construction of physical barriers along the entire border at the discretion of DHS.

Whoops!

Finally, French argues that the wall is not "essential to the national defense."

Implicitly, he concedes my earlier point that there is no requirement of a "showing" in this regard.

Instead, he says - "words still have meaning."

That's fine.

Drug cartels - narcoterrorists - control the border areas.

It takes an unnecessarily cramped view of "national defense" to argue border security isn't essential to it.

National security isn't just about security from state actors. Non-state actors matter too.

One final new argument - "vanishingly few people of good faith believe that any of the statutes at issue were intended to empower the construction of Trump's border wall."

Even if this - again, silly - "intent" standard were law, I think French is wrong.

It's hard to read 33 USC 2393 without thinking that a border wall is the type of "civil work" or "civil defense project" that Congress would have considered within its ambit - especially given that we're talking about the Army Corps of Engineers.

So, @DavidAFrench.

No one is advocating for an "imperial presidency."

No one is "debasing our constitutional republic."

You don't have to make weak "intent" arguments.

The fairest reading of these statutes that Trump has the authority to #BuildTheWall.

That's enough.

FIN

Thread continues here:

https://twitter.com/willchamberlain/status/1083473478500708354?s=21