Today, a fellow contributor argued that President Trump should be impeached for declaring a National Emergency to secure funding for the border wall. This claim is utter lunacy. Impeachment is only for officials who commit treason, bribery, and other high crimes and misdemeanors.
The Constitution defines treason in Article 3, Section 3, Clause 1:
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
This makes it completely clear that President Trump is not attempting to commit treason via his National Emergency. If anything, declaring a National Emergency would be the opposite of treason as it is an attempt to secure the country from hostility on our southern border. It is also obvious that Trump isn’t bribing anyone to do this, as he has been devoted to the illegal immigration issue on the border since the first day of his presidential campaign. Finally, the National Emergencies Act does not include language about how an abuse of the National Emergency Act should result in a criminal charge.
Looking at the issue of the National Emergencies Act of 1976, experts are split on whether this is a legal procedure. While it is concerning that there were over 76,000 migrants crossed the U.S.-Mexico border last month, a 200% increase from February of last year, that doesn’t mean that President Trump can overthrow the Separation of Powers to keep a campaign promise. Consequently, this could cause legal trouble for the Trump Administration later down the road.
However, the use of National Emergencies in past administrations has caused the definition of what could qualify as an emergency to be broadened. In April 2010, President Obama signed an executive order called “Blocking Property of Certain Persons Contributing to the Conflict in Somalia.” This executive order enumerates the threats posed by Somali pirates and how blocking property of certain persons was contributing to the situation in Burundi after a failed coup.
So do these pirates have any immediate threat to the United States? Not really as the U.S. and Somalia only traded $72 million in total goods trade during 2017. Furthermore, the Somali Civil War seems to be of little to no benefit from the U.S. However, the Trump administration declared an emergency here at home on an issue relating to criminal activity and an economic burden. Furthermore, the 1981 Supreme Court Case Dames & Moore v. Regan could help Trump in this situation.
In a recent article by John Yoo, a Berkeley law professor, and former Bush administration Justice Department official said this on Trump’s National Emergency:
“Here, unlike Youngstown, there is no direct conflict between Congress and the President. 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 [E]xecutive [B]ranch 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.”
Let the courts do their job to determine if this is indeed an unconstitutional act or if President Trump needs to enact 10 U.S. Code § 284 by calling the entire southern border a drug corridor (thus having the same effect as the declaration). But one thing is certainly clear: Although the National Emergency declaration may be unconstitutional, the idea of impeaching the President over this petty legal problem is absolutely insane.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.