Trump Counting on Supreme Court to Vindicate His Emergency Declaration

Will SCOTUS ultimately back Trump the way it did on his revised travel ban?
Photo: Chip Somodevilla/Getty Images

In his strange, rambling, interminable press conference that sorta kinda announced his decision to declare a national emergency so that he can raid military construction accounts for border-wall money, President Trump acknowledged that this move will immediately spur litigation, and even that lower federal courts would initially stymie him. But he expressed confidence that the Supreme Court would eventually back him just as it did in the case of a revised travel ban that had been voided by lower courts.

Sadly, we’ll be sued and sadly it will go through a process and happily we’ll win, I think.

This means that Trump is admitting that his declaration isn’t going to accomplish much of anything (other than making his nativist “base” happy) until the litigation is complete. More importantly, he did his legal case little good in publicly trying to justify the emergency declaration, as the husband of his senior counselor quickly noted:

There will be many complaints filed, no doubt, including one emanating from the House and Senate Democrats who trounced Trump in the battle over border-wall funding, as a joint statement by Nancy Pelosi and Chuck Schumer indicates:

The President’s unlawful declaration over a crisis that does not exist does great violence to our Constitution and makes America less safe, stealing from urgently needed defense funds for the security of our military and our nation …

The President’s actions clearly violate the Congress’s exclusive power of the purse, which our Founders enshrined in the Constitution. The Congress will defend our constitutional authorities in the Congress, in the Courts, and in the public, using every remedy available.

Aside from the president’s admission that he didn’t really need to declare a national emergency, the factual case for it is weak, and wasn’t exactly cleared up by Trump’s weird confrontation with reporters over immigration and crime statistics emanating from his own administration. He all but said that his evidence that there is a border crisis is that he thinks there is one, as his testy exchange today with CNN’s Jim Acosta indicated:

Trump’s best hope in court is that judges (and presumably SCOTUS) will take the traditional deference to the president’s national-security authority and combine that with express congressional delegation of emergency powers to give him virtual carte blanche in situations like this, without much of a look at the underlying facts. University of California Law Professor John Yoo, a fan of extensive presidential powers (if not always a fan of Trump), thinks it’s a winning argument:

Congress has not passed a law denying the President the authority to take measures to protect the border; in fact, in 2006 Congress passed a law by bipartisan majorities authorizing the construction of a wall. In Dames & Moore v. Regan (1981), the Court found that when Congress broadly delegates a general power to the executive branch in the area of foreign affairs, such as the power to impose economic sanctions, it would not read Congress’s neglect to grant a more specific, related authority as foreclosing the president from exercising that authority. Instead, it would treat Congress’s silence as acquiescence to presidential initiative, especially in times of emergency. That is exactly the case here: Congress has authorized a wall and other security measures at the border, it has not passed any law forbidding such a wall, and the president has invoked delegated powers to continue the wall’s construction.

In this construction of the law, Trump’s action would be allowed by the Courts despite his blundering efforts to justify it, and the authoritarian attitude he so alarmingly illustrated today in his rare moments of coherence.

There will be other challenges to this action in Congress (which can overrule an emergency declaration) and in the court of public opinion. But it’s an open question what SCOTUS will do with this hot potato if it arrives on its docket.

Trump Counting on Supremes to Support Emergency Declaration

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crime

Jussie Smollett Being Investigated As an ‘Active Participant’ in His Own Attack

By Bethy Squires

Police confirm the focus of the investigation has shifted.

Heather Nauert won’t be Trump’s new UN ambassador

BREAKING scoop: Heather Nauert withdrawn from consideration for U.S. ambassador to the United Nations. Heather Nauert’s nomination began to falter after the White House was alerted that a problem had cropped up in her background check —Trump’s pick for UN ambassador had employed a nanny who was in US legally but didn’t have a US work permit, sources tell me and Nicholas Wadhams.

Jennifer Jacobs

Bloomberg

Now CNN is reporting that Empire actor Jussie Smollett may have faked his own attack, according to new evidence

Two law enforcement sources with knowledge of the investigation told CNN that Chicago Police believe Jussie Smollett paid two men to orchestrate the assault.

The brothers, who were arrested Wednesday, were released without charges Friday after Chicago police cited the discovery of “new evidence.” The sources told CNN that the two men are now cooperating fully with law enforcement.

Smollett told authorities he was attacked early January 29 by two men who were “yelling out racial and homophobic slurs.” He said one attacker put a rope around his neck and poured an unknown chemical substance on him.

CNN

The story is developing

The women using Facebook groups to expose government goons in Sudan

Women in Sudan are using private Facebook groups created to creep on crushes to dox state security officers brutalizing demonstrators during huge anti-government protests sweeping the country. When security agents and police abusing their power have had their identities exposed, they have been hounded by people in their own neighborhoods, beaten up, and sometimes even chased out of town.

The groups — only accessible via a virtual private network (VPN) after the government blocked social media — are part of the response to a brutal crackdown on anti-government protests that have swept the country since December. They are the largest ever against the regime of Sudanese President Omar al-Bashir, who took office in 1989 and whom protesters accuse of enforcing oppressive laws and wrecking the economy. At least 57 people have been killed in the protests, and countless others have been shot at, teargassedhad their hair cut off by officers, and tortured.

Sudan’s morality laws prevent women from gathering in public; dictate the clothes they wear; and authorize the use of corporal punishment, like lashing and stoning, if they violate or criticize the rules. As a result, private Facebook groups have become a popular way for millions of Sudanese women to safely communicate with one another.

Bernie 2020 nears

Bernie Sanders, inching closer to a second bid for the White House, has recorded a campaign video in which he says he is running for president in 2020, according to two people familiar with the spot. It’s the latest sign the independent senator, the runner-up in the 2016 contest for the Democratic nomination, is nearing a presidential announcement.

Another hint that Sanders is getting closer to a launch: As POLITICO reported this week, the Sanders team has been interviewing people for top staff positions. Chuck Rocha, a political consultant who advised Sanders’ 2016 campaign, is expected to join him again if a second bid materializes.

It is unclear when, or even whether, the Sanders video will be released. It’s possible that Sanders could launch a 2020 campaign with an exploratory committee and then formally declare his candidacy later, a route other presidential candidates, such as Sen. Elizabeth Warren, have taken.

A swing-state swing toward renewables

Ohio’s political conservatives strongly favor renewable energy over coal and especially over nuclear power, a new poll commissioned by the Ohio Conservative Energy Forum has found.

“Conservatives in Ohio are strong supporters of renewable energy, with a clear majority, 70 percent, wanting 50 percent or more of their energy to come from renewable sources,” concluded Jim Hobart, a partner at Public Opinion Strategies, a national polling firm which does research for Republican candidates. The poll was the third such survey Public Opinion Strategies had done for the the Ohio Conservative Energy Forum. It found growing support for clean energy. And a willingness to pay extra for it.

Conservative Ohio voters “also view renewable energy as a job creator in the state, with low-income conservatives and conservative men being especially likely to say that the increased use of renewables would create jobs in Ohio,” Hobart’s summary of findings points out.

Too black, or not black enough — Kamala Harris is facing the same impossible standard that Obama did

Harris should be questioned about her record as a senator and an attorney general, and her tenure as San Francisco’s district attorney, but too much of the conversation about her is instead dominated by insecurities that have nothing to do with determining whether she would be a good president.

The economist and author Boyce Watkins, who is black, tweeted, “If #KamalaHarris went to an #HBCU, what do you think led her to marry a white man?” Harris had to address this in her [recent] Breakfast Club interview. She said she’s married to her white husband because she loves him. Imagine that.

In a nod to the racist birther conspiracy that enveloped President Barack Obama, a tweet claiming that Harris wasn’t eligible to run for president because of her immigrant parents went viral. It has been repeated as fact so often that Harris is now forced to explain her ethnic background.

Was nothing learned from Obama’s run for president? He faced the same inane, pointless questions about his mixed-race identity as Harris. Just like Obama, Harris has exposed narrow-minded views of blackness with her presidential run. Harris is a multiracial woman who was born in Oakland, went to high school in Montreal, and worshipped with both Hindus and Baptists. She’s a member of the Alpha Kappa Alpha sorority, and yet, by her account, knows how to make an incredible Bolognese and a mean pot of collard greens. If the criterion for running for president is being authentically American, people have to accept that this is what that looks like.

Jemele Hill

The Atlantic

And even when existing gun control laws should help prevent a tragedy…

Aurora shooter Gary Martin had his gun license strip after a felony conviction was discovered when he applied for a concealed carry card. He lost his card but still kept his gun. And that gun was used to kill 5 people and wound 5 police officers Friday. Aurora Police Chief Kristen Ziman said authorities are now investigating which law-enforcement agency was responsible for following up with Martin after he lost his license and why he still had a gun five years later. The criminal background check done when Martin applied for his gun license did not find his felony conviction. It wasn’t until he was fingerprinted for the concealed carry card that it popped up in his background.

Stacy St. Clair

Chicago Tribune reporter, via Twitter

President Trump will spend Saturday monitoring the national emergency from his golf club

Photo: President Donald Trump seen departing his Mar-a-lago vacation resort in Palm Beach, Florida on Saturday to travel to the Trump International Golf Club in West Palm Beach. (AP Photo/Andrew Harnik)

Inmates reportedly faced reprisals at federal prison in Brooklyn after protesting against lack of heat

Jordan remembers jolting awake in his cell at the Metropolitan Detention Center in Brooklyn, New York, in the early-morning hours of Saturday, February 2. He had been hit with pepper spray to the face. Jordan, who The Intercept is identifying by a pseudonym, said guards sprayed and shackled him and his cellmate, then led them, partially blinded, to a shower area to rinse off. Next, he spent several hours in a “freezing” unit wearing only boxers and a T-shirt, before being transferred to solitary confinement. …

Accounts from incarcerated people, their family members, and lawyers sketch a picture of widespread protests at the Sunset Park detention facility. People across multiple housing units undertook coordinated acts of nonviolent disobedience and at least three hunger strikes. Retaliation by Metropolitan Detention Center staff ranged from pepper spray and solitary confinement to shutting off toilets across entire units. All told, men on at least four housing units inside the jail say they took part in some sort of collective protest of their conditions. In each instance, they say their actions were met with official retaliation.

Despite making $11.2 billion in profits last year, Amazon once again paid no federal taxes — because this is America

Amazon, the e-commerce giant helmed by the world’s richest man, paid no federal taxes on profit of $11.2 billion last year, according to an analysis of the company’s corporate filings by the Institute for Taxation and Economic Policy (ITEP), a progressive think tank. Thanks to a variety of tax credits and a significant tax break available on pay handed out in the form of company stock, Amazon actually received a federal tax rebate of $129 million last year, giving it an effective federal tax rate of roughly -1 percent.

It is the second year in a row the company has enjoyed a negative federal tax rate on a multibillion dollar profit. That would place the company’s effective federal tax rate below the rate paid by the poorest 20 percent of American households, which had an effective federal tax rate of 1.5 percent in 2015, according to the Tax Policy Center. …

Like many other large companies, Amazon reduces its effective tax rate each year using a variety of credits, rebates and loopholes. For Amazon, the most lucrative of those was a tax break for pay given out in the form of stock options, which allowed the company to shave roughly $1 billion off its 2018 tax bill, [ITEP senior fellow Matthew Gardner] said. That would represent nearly half of the total federal tax bill levied on the company’s profit of $11.2 billion, he said.

Previous ITEP analysis has shown that between 2008 and 2015, profitable Fortune 500 companies paid an average effective federal tax rate of 21.2 percent, well under the statutory 35 percent rate in effect in that period. One hundred of the companies had paid zero or negative tax in at least one profitable year, and 58 of them had multiple zero-tax years while being profitable.

As expected, House Democrats are pursuing details about Trump’s private Putin meetings

House Democrats are taking their first real steps to force President Donald Trump to divulge information about his private conversations with Russian President Vladimir Putin, setting up an extraordinary clash with the White House over Congress’ oversight authority.

Rep. Adam Schiff, the Intelligence Committee chairman, and Rep. Eliot Engel, the Foreign Affairs Committee chairman, told POLITICO they are actively consulting with House General Counsel Douglas Letter about the best way to legally compel the Trump administration to turn over documents or other information related to the president’s one-on-one discussions with the Russian leader.

“I had a meeting with the general counsel to discuss this and determine the best way to find out what took place in those private meetings — whether it’s by seeking the interpreter’s testimony, the interpreter’s notes, or other means,” Schiff (D-Calif.) said in a brief interview.It’s a development that indicates Schiff and Engel are close to taking action on the matter; key members of the majority party often consult with the chamber’s general counsel on issues that could end up playing out in court. Democrats want to ensure that they are on the strongest possible legal ground because they anticipate the Trump administration will mount spirited challenges.

More details on the deadly mass shooting at an Aurora, Illinois workplace on Friday

A 15-year veteran of a manufacturing business who was being terminated opened fire inside the company’s Aurora plant Friday afternoon, killing five people and wounding five police officers who responded to the scene, police said.

Authorities said the gunman, 45-year-old Gary Martin, of Aurora, was also killed in the shootout at Henry Pratt Co., a manufacturer of industrial valves. The names of the victims were not released Friday evening. A sixth officer suffered a knee injury. It wasn’t clear how he was injured, but he wasn’t shot.

On Saturday morning, authorities announced that the shooter had numerous prior arrests for traffic violations and domestic violence. They also released the names of the victims:

Clayton Parks, of Elgin Illinois. Mr. Parks was the Human Resources Manager at Henry Pratt.

Trevor Wehner, of Dekalb, Illinois. Mr. Wehner was a Human Resources Intern at Henry Pratt and a student at Northern Illinois University.

Russell Beyer, of Yorkville, Illinois. Mr. Beyer was a Mold Operator at Henry Pratt.

Vicente Juarez of Oswego, Illinois. Mr. Juarez was a Stock Room Attendant and Fork Lift Operator at Henry Pratt.

Josh Pinkard, of Oswego, Illinois. Mr. Pinkard was the Plant Manager for Henry Pratt.

Another shooting victim, a male employee of Henry Pratt, was treated at an area hospital for non-life-threatening gunshot wounds sustained during the shooting incident.

A big step closer to legal weed in New Jersey

Gov. Phil Murphy and state legislative leaders have reached a deal in principle on how to tax and regulate marijuana in New Jersey after months of negotiations, paving the way to bringing legal weed to the Garden State.

Multiple legislative and industry sources confirmed an agreement was in place on a bill that would tax marijuana by the ounce, rather than the contentious sales tax that had divided Murphy and state Senate President Stephen Sweeney. Those sources requested anonymity because they weren’t authorized to speak publicly on the deal.

State Sen. Nicholas Scutari, D-Union, the prime sponsor of the legalization bill, refused to reveal any of the details of the negotiation. But he said they were as close as they had ever been in reaching an agreement. … The final bill would also address clearing marijuana convictions from criminal records — expungements. That’s a key component to the effort to legalize marijuana. Legislators have been crafting a new expungement bill that could be introduced as early as next week.

politics

Donald Trump Seemed Bored While Declaring a National Emergency

By Olivia Nuzzi

The president made a low-energy attempt at seizing authoritarian power in the Rose Garden on Friday.


programming note

programming note

CBS Deems Trump’s National Emergency Speech Less Important Than Price Is Right

By Devon Ivie

Twenty minutes after his 8-minute speech began 40 minutes late, it was back to the Big Wheel.

intellectual property

intellectual property

Even If The Fortnite Lawsuits Fail, This Issue Isn’t Going Away

By Brian Feldman

Being able to perfectly reproduce movements into infinity is a new, legally unexplored issue.

As New York’s David Wallace-Wells puts it, “Sometimes it almost feels like western intuitions of climate doom are just projections of imperial decline.”

China is taking its renewable energy push to new heights, with scientists revealing plans to build the first solar power station in space.

A solar power station orbiting the earth at 36,000 kilometres could tap the energy of the sun’s rays without interference from the atmosphere, or seasonal and night-time loss of sunlight, Chinese media reported.

A researcher from the China Academy of Space Technology Corporation, Pang Zhihao, said a space solar power station held the promise of providing “an inexhaustible source of clean energy for humans”.

It could reliably supply energy 99 per cent of the time, at six-times the intensity of solar farms on earth, he said.

The next step will be a Megawatt-level space solar power station, slated for construction in 2030.

The legal challenges to Trump’s national emergency are rolling in

We believe your declaration of an emergency shows a reckless disregard for the separation of powers and your own responsibilities under our constitutional system. The Constitution vests the Congress with the power of the purse and expressly provides that “no money shall be drawn from the Treasury, but in consequence of appropriations made by law.” Congress has entrusted you and your predecessors with emergency authority in order to respond quickly and effectively to real crises, such as wars and disasters.

The Judiciary Committee, which has jurisdiction over the National Emergenices Act, did so based on an understanding that the President would “tae care that the laws be faithfully executed” and would resort to this authority only when absolutelly necessary. By fabricating an emergency in order to bypass the political process for allocating a budget, you appear to be abusing both this trust and your own oath of office.

The House Judiciary Committee

Harris secures an important home-state endorsement

Kamala Harris is a fearless fighter. A voice for the voiceless and vulnerable. From advancing equality to defending immigrant communities to expanding opportunity, she’ll do what’s right. Proud to endorse

@KamalaHarris

for President.

pic.twitter.com/3MGPBcUigR

@GavinNewsom

Any press is good press?

Photo: Media Matters

russia investigation

russia investigation

Mueller Recommends Paul Manafort Receive Up to 24 Years in Prison

By Matt Stieb

Unfortunately for Manafort’s chances of ever getting out of prison, this recommended sentence only deals with his financial convictions in Virginia.

Trump’s emergency declaration faces its first court hurdle

A consumer advocacy group filed the first lawsuit late Friday challenging President Donald Trump’s national emergency declaration, suing on behalf of Texas landowners and an environmental group who say they’ll be affected by border wall construction.

The case, filed by Public Citizen in federal district court in Washington, DC, is the first of what are expected to be multiple lawsuits challenging Trump’s unprecedented decision to declare a national emergency in order to access $3.6 billion in military construction funds to pay for more sections of the wall he promised to build along the US–Mexico border.

Public Citizen is arguing the president exceeded his authority under the federal National Emergencies Act because there is no emergency at the southern border, and that his declaration of a national emergency in order to build the wall violates the separation of powers — essentially, that it’s unconstitutional for Trump to declare an emergency because Congress already refused to appropriate the money.

Public Citizen is one of several groups that have announced plans to sue the administration, but are the first to file. House Democrats are considering going to court to challenge the emergency, as are Democratic attorneys general. At a press conference Friday, California Attorney General Xavier Becerra said his office was likely to pursue legal action.

Key sections from Mueller’s sentencing recommendation for Paul Manafort

The defendant stands convicted of the serious crimes of tax fraud, bank fraud, and failing to file a foreign bank account report. Manafort was the lead perpetrator and a direct beneficiary of each offense. And while some of these offenses are commonly prosecuted, there was nothing ordinary about the millions of dollars involved in the defendant’s crimes, the duration of his criminal conduct, or the sophistication of his schemes.

Together with the relevant criminal conduct, Manafort’s misconduct involved more than $16 million in unreported income resulting in more than $6 million in federal taxes owed, more than $55 million hidden in foreign bank accounts, and more than $25 million secured from financial institutions through lies resulting in a fraud loss of more than $6 million.

Manafort did not commit these crimes out of necessity or hardship. He was well educated, professionally successful, and financially well off. He nonetheless cheated the United States Treasury and the public out of more than $6 million in taxes at a time when he had substantial resources. Manafort committed bank fraud to supplement his liquidity because his lavish spending exhausted his substantial cash resources when his overseas income dwindled.

Special counsel investigation

Special counsel recommends Manafort receive a sentence somewhere between 19.5 to 24.5 years, potentially putting him in prison until he is 93

JUST IN: Special Counsel Mueller recommends former Trump campaign chairman Manafort be sentenced to 19-24 years in prison – court filing

pic.twitter.com/B9XyncEjU3

@Reuters

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