Let me try my hand at prophecy: About Mr. Trump's Emergency declaration

Prophecy is a mug's game.  Something like 95% of prophecies don't turn out.  But there is a class of prophecy that does turn out: Prophecies based on a correct understanding of natural phenomena.  The big challenge there is "correct".  Warmists think that CO2 warms the earth. But that is demonstrably not correct.  There is no synchrony between the two. But prophesying the position of the earth  relative to the other planets at any one time can be done with great accuracy because we do have a very good and correct knowledge of orbital dynamics.

And in principle, the same applies with regard to all other natural phenomena, including what people do.  The social sciences exist because people think they can see regularities in human behaviour and once you have a regularity, accurate prophecy should be possible.  And in economics that definitely happens.  If you restrict the supply of something, its price will go up, for instance.  It always does.

But when you get into the other social sciences prophecy is rarely possible.  My academic background is principally in psychology and the only sound generalization from human psychology that I know of that has much in the way of real-life application is the generalization that your educational success will be almost entirely a product of your IQ.

But as well as my background in psychology, I also have a substantial background in sociology and economics.  I taught in a sociology school for a number of years and I am also a former high School economics teacher. So it would seem possible that a combination  of three social science disciplines might occasionally enable accurate prophecies.  And I have repeatedly found that it does. What I think will happen or should happen in the world of politics often does end up actually happening.  I am a pretty good knowledge-based prophet.

So far I have never put one of  my prophecies into writing so perhaps it is now time that I did.  I may be hilariously wrong but I can handle that.  And what I want to prophecy is quite daring.  I want to forecast both the verdicts and the reasoning of both the U.S. 9th Circuit Court of Appeal and the Supreme Court of the United States.  And I dare to do that without having any formal knowledge of law or any legal qualifications.  So I am setting myself a very difficult task indeed. I am setting myself up for a fall but it will be fun if nothing else

I refer to the Emergency Declaration that President Trump is using to fund his wall. It generally takes a while for matters to come up before a court but it should fairly quickly come before the 9th Circus.  I anticipate that there will be 4 arguments put to the court in favour of the declaration:

1). The courts have no jurisdiction over how the Commander in chief discharges his duties.  It is for the commander to command and he, not the courts, has the final word about that. So he can therefore use military resources to build a wall. The U.S. Army Corps of Engineers carries out many tasks without explicit congressional authority and a wall is just another example of that.

There are some legal restrictions on what the commander can do with the military but none mention wall building.  And even the restrictions that do exist are customarily applied only lightly.  Many wars have been initiated without the authority of Congress, for instance

2). Since passage of the National Emergencies Act in 1976, every U.S. President has declared multiple national emergencies, so Trump is not doing anything out of line. And  123 enumerated powers are invoked by an executive declaration with no Congressional input. This should actually be the core issue in the case and will no doubt be  examined in great detail so I will say no further about that approach.  The sudden arrival of whole caravans of illegals could well be held to be an emergency requiring extra powers.

3). Reallocating funds away from their original purpose is routine so again Trump is well within precedent.  He could do his intended reallocation of funds even WITHOUT an Emergency declaration.  To deny him that customary right would greatly hobble all future administrations and cast into legal limbo many past funding arrangements.  That is surely not to be done lightly.

4). Government by regulation is already well established.  Mr Obama used his "pen and phone" to circumvent Congress on some quite major matters -- notably the creation of DACA immigrants. Trump is simply trying to ENFORCE the law by using regulatory powers.  Obama explicity CREATED a whole class of new law with no Congressional authority.  The courts have so far upheld the authority of the DACA declaration so it should be merely consistent to uphold Trump's much less innovative declaration.

This argument, by the way, is a complete answer to the idiocy of Rand Paul, who says he will vote against the emergency declaration in the Senate because he fears what a future Democrat president will do with the precedent.  He forgets that the precedent has already been set -- by Obama -- and that Trump's declaration sets no new precedent. Rand Paul is doing a classical act of trying to close the door after the horse has escaped.

So I am pretty sure that at least one of those arguments will ultimately prevail.  There is even a possibility that one will prevail at the 9th Circuit level.  Let me go out on a limb and prophecy that the 9th Circuit with find the emergency declaration improper but will allow that Trump is nonetheless entitled to build his wall using recycled funds because recycling funds has strong precedent.  If that is the verdict, the matter will probably not go to SCOTUS.  If it does go to SCOTUS, they will probably use that reasoning too.

1 comment:

  1. Argument 4 is the weakest. While precedent plays a role, it cannot prevail against Constitutional requirements. The Executive may issue regulations to enact the intent of a law, but it cannot enact regulations that thwart the law. Further, executive orders cannot do this either, such action violates the separation of powers, unless Congress has delegated such powers to the executive, which it has done in this case. However, an unconstitutional executive order is always unconstitutional. The problem is that someone has to challenge it and the length of time it takes to go through the courts. This is the reason unconstitutional orders by Obama stood up. But Democrats are willing to make even the most frivolous claims to stop Trump's orders, and liberal courts have been willing to accept those claims, even when it means violating the separation of powers. Unfortunately, Trump has too often been willing to defer to the courts even where the court is unconstitutionally exercising authority granted to other branches of government.

    Trump's order is clearly constitutional and authorized by statue. As president and commander-in-chief he has the duty and authority to defend the boarders. Building a wall on the boarder clearly falls within this mandate. However, I do not share your optimism on any decision coming out of the 9th Circuit. I expect they would go against Trump on this, as they have on other issues where Trump was even more justified (i.e. the so called 'Muslim ban'). In this case, if this is truly an emergency (I think it is), and a court issues an injunction, Trump must ignore it court's order. The courts have no authority to dictate policies that are within the exclusive prerogative of another branch of government. It is too dangerous to allow courts the authority to second guess military actions and other efforts in national emergencies. This would place lives and the country is serious peril. However, ignoring an injunction would create a constitutional crisis that would have to go immediately to the Supreme Court.

    I don't believe Trump will win in the 9th Circuit because he's Trump, but he will win in the Supreme Court. Ultimately, that is the court that matters.


All comments containing Chinese characters will not be published as I do not understand them