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Senator, that’s not what’s happening and you know it.
President Trump is invoking long-standing statutory authority to build the wall.
Want to repeal the underlying statute? Fine.
But your action today says that Trump can’t use this power - but that Democrats can.
President Trump is invoking long-standing statutory authority to build the wall.
Want to repeal the underlying statute? Fine.
But your action today says that Trump can’t use this power - but that Democrats can.
When President Obama declared a national emergency in Burundi, you had nothing to say.
But when Trump declares a national emergency on our border, you object?
Respectfully, Senator, please reconsider.
Democrats - and the media - are gaslighting you.
But when Trump declares a national emergency on our border, you object?
Respectfully, Senator, please reconsider.
Democrats - and the media - are gaslighting you.
Reading @RandPaul's full op-ed - it's clear he's trying to think through this question in an honest, forthright fashion (as we have come to expect!
That said - I think there are some serious problems with his argument, which I'll go through here.
foxnews.com/opinion/sen-ra…
That said - I think there are some serious problems with his argument, which I'll go through here.
foxnews.com/opinion/sen-ra…
I want to focus on Senator Paul's characterization of the Youngstown case.
The Senator argues that "the Court ruled that there are three kinds of executive order - orders that carry out an expressly voiced Congressional position, orders where Congress' will is unclear...
The Senator argues that "the Court ruled that there are three kinds of executive order - orders that carry out an expressly voiced Congressional position, orders where Congress' will is unclear...
"and, finally orders clearly opposed to the will of Congress."
Youngstown is important, and Justice Jackson's concurrence does lay out the framework for executive power.
The problem? @RandPaul's characterization is *close* to what Youngstown says - but not close enough.
Youngstown is important, and Justice Jackson's concurrence does lay out the framework for executive power.
The problem? @RandPaul's characterization is *close* to what Youngstown says - but not close enough.
The question is not whether there is "an expressly voiced congressional position."
If the President is acting "pursuant to an express or implied authorization of Congress," his power is at is maximum.
The difference between a "position" and an "authorization" matters.
If the President is acting "pursuant to an express or implied authorization of Congress," his power is at is maximum.
The difference between a "position" and an "authorization" matters.
A "position" reflects, perhaps, the current *mood* of Congress.
But "authorization" clearly includes statutes that are already on the books.
Thus, under Youngstown, if the President invokes statutory authority for executive action, his power is at its maximum.
But "authorization" clearly includes statutes that are already on the books.
Thus, under Youngstown, if the President invokes statutory authority for executive action, his power is at its maximum.
This means that other parts of @RandPaul's analysis are unsound.
The Senator argues that there are "really two questions" - whether the President has the *statutory* authority, and whether he has the *constitutional* authority.
The Senator argues that there are "really two questions" - whether the President has the *statutory* authority, and whether he has the *constitutional* authority.
However, in the context of Senator Paul's argument, the "two questions" merge into one.
If President Trump has the statutory authority, he's in zone 1 of Youngstown, and on firm constitutional ground. If he doesn't, he isn't.
If President Trump has the statutory authority, he's in zone 1 of Youngstown, and on firm constitutional ground. If he doesn't, he isn't.
So Senator Paul is left only with the worry that "maybe" the statutory authorization isn't there.
I submit that if the Senator believes the statute is ambiguous, he should support the President's declaration and let the courts sort it out.
I submit that if the Senator believes the statute is ambiguous, he should support the President's declaration and let the courts sort it out.
But it doesn't make sense to argue that an executive action that correctly invokes statutory authority is unconstitutional under *Youngstown*.
It might be unconstitutional for other reasons. It might violate some other constitutional principle.
But not this one.
FIN
It might be unconstitutional for other reasons. It might violate some other constitutional principle.
But not this one.
FIN
