lindajoy Loc: right here with you....

Some consideration a bit different than yours~~
The real t***h is no one has ever barred the President in a declaration of emergency..

Trump said he would decide on doing so "if I can't make a deal with people that are unreasonable."

The president is correct

Some scholars of p**********l emergency powers say there is next to nothing, at least procedurally, that Capitol Hill could do to stop Trump from exercising what lawmakers of all stripes agree is his right to declare a national emergency.

"Congress chose not to put any substantial — or really any — barriers on the president's ability to declare a national emergency," says Elizabeth Goitein, co-director of the Brennan Center for Justice's Liberty and National Security Program.

"So if he can really just sign his name to a piece of paper, whether it is a real emergency or not," she adds, "that creates a state of emergency that gives him access to these special powers that are contained in more than 100 different provisions of law that Congress has passed over the years."

Trump has already invoked national emergency powers on three occasions, adding to the 28 earlier national emergency measures that remain in effect.

Almost all of them, including those signed by Trump, were invoked to freeze foreign nationals' assets in the U.S. The longest-standing decree dates to November 1979, when President Jimmy Carter froze Iran's U.S.-held assets.

Goitein's Brennan Center has compiled a list of 136 statutory powers that Congress grants the occupant of the Oval Office on an emergency basis.

"Emergency powers have a place in a democracy," says Goitein. "The concern is that in an emergency — and a true emergency, which is unforeseen and unforeseeable — the laws that are on the books might not be sufficient to deal with the emergency. It's this idea that extraordinary times call for extraordinary measures."

The problem, she adds, is that "democracy also has a place in emergency powers, and that's where I feel like our current system isn't serving us very well."

Another expert on national emergency powers agrees.

"I think part of the problem here is that history messed with Congress' original plan," says Stephen Vladeck, who teaches at the University of Texas, Austin School of Law.

An effort to check p**********l power

Congress had tried to remedy its lack of control over emergency powers in the mid-1970s, in a Washington rocked by the Watergate scandal.

At the time, once a national emergency had been declared, there were neither time limits for its duration nor requirements for reporting to Congress.

Congress' reform effort was the National Emergencies Act of 1976.

It requires not only that the president formally declare a national emergency but also that he or she cite the specific statutory authority the president sought to use. An emergency declaration would lapse after one year unless formally renewed by the president.

There is also a means for lawmakers to do away with a national emergency decree.

"The way that Congress set it up," says Vladeck, "was that Congress could basically terminate any national emergency the president declared through a concurrent resolution — simply through majority v**es of both houses, without the president's approval."

That veto-free arrangement, though, did not pass constitutional muster when it went before the Supreme Court in 1983.

Congress' response was to revise the National Emergencies Act so that the termination of an emergency decree required a joint resolution signed by the president. If the president vetoes such a measure, a two-thirds majority v**e in each chamber would be needed to override.

That fix effectively set the political bar considerably higher for reining in p**********l national emergency declarations — that is, should Congress ever try to do that.

"Congress has never v**ed once in the last 40 years — since the National Emergencies Act has been in effect — to terminate a state of emergency," says Goitein. "At no point either before the court's decision or after has Congress ever attempted to exercise this check."

That may be, at least in part, because lawmakers trusted the National Emergencies Act was being invoked in good faith. "The assumption is that presidents are going to be relatively responsible in using those authorities and resources," says UT's Vladeck, "and are not going to just create some kind of pretext to allow them to go through a back door when Congress is denying them the front door."

Building a wall Congress won't fund

Should Trump decide to circumvent Congress by declaring a national emergency to build a border wall, he would very likely rely on a statute that lets him reprogram unobligated funds that Congress has appropriated for military construction projects.

"It's probably about $20 billion funding that the military has available right now in military construction and family housing accounts that has not yet been obligated," says Todd Harrison, who directs defense budget analysis at the Center for Strategic and International Studies.

"So if President Trump were to use this money for building a wall," Harrison says, "I suppose that would mean taking away money for other military construction projects."

The prospect of Trump's confiscating money designated for other projects has some prominent congressional Republicans worried, including Rep. Mac Thornberry of Texas. "I do not think it's a good idea," the ranking Republican on the House Armed Services Committee told MSNBC. "There are real needs today with barracks, and maintenance facilities and all sorts of military construction projects that are important for national security."

Some predict a move by Trump to invoke a national emergency would get mired in litigation. "I think the president would be wide open to a court challenge saying, 'Where's the emergency?' " the House Armed Services Committee's Democratic chairman, Adam Smith, declared on ABC.

Others aren't so sure.

"Congress didn't define what is and what is not a national emergency," says Vladeck, "so it's hard to imagine what criteria a federal court could use in trying to decide whether a national emergency was properly declared or not."

If there were to be a court challenge, CSIS's Harrison says, it is not likely to be over Trump's invocation of the National Emergencies Act. A more plausible challenge, he says, would be over whether the wall Trump wants the military to build is aligned with a statute that stipulates any reprogramming of military funds must be "to undertake military construction projects."

"Border security is the responsibility of the Department of Homeland Security, not the Department of Defense," says Harrison. "So I think it is not clear at all that the declaration of a national emergency here would actually allow the administration to use military funding for a nonmilitary purpose."

lindajoy Loc: right here with you....

Thought I would actually post the National Emergency Code to actually read what it says rather than just rely on a portion of it given all the discussion of it..Sorry its long but very informative~,
Should Congress move to vacate the emergency declaration on Trump declaring a national emergency which is legal.... Congress will sue and we’ll see how this plays out. Hopefully it can get this to the Supreme Court quickly and have the Supreme Court uphold the declaration~,

Likewise here is 50 U.S. Code § 1622 - National emergencies
US Code
Notes
Authorities (CFR)

(a) Termination methodsAny national emergency declared by the President in accordance with this subchapter shall terminate if—
(1) there is enacted into law a joint resolution terminating the emergency; or
(2) the President issues a proclamation terminating the emergency.
Any national emergency declared by the President shall be terminated on the date specified in any joint resolution referred to in clause (1) or on the date specified in a proclamation by the President terminating the emergency as provided in clause (2) of this subsection, whichever date is earlier, and any powers or authorities exercised by reason of said emergency shall cease to be exercised after such specified date, except that such termination shall not affect—
(A) any action taken or proceeding pending not finally concluded or determined on such date;
(B) any action or proceeding based on any act committed prior to such date; or
(C) any rights or duties that matured or penalties that were incurred prior to such date.
(b) Termination review of national emergencies by Congress
Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a v**e on a joint resolution to determine whether that emergency shall be terminated.
(c) Joint resolution; referral to Congressional committees; conference committee in event of disagreement; filing of report; termination procedure deemed part of rules of House and Senate
(1) A joint resolution to terminate a national emergency declared by the President shall be referred to the appropriate committee of the House of Representatives or the Senate, as the case may be. One such joint resolution shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee, unless such House shall otherwise determine by the yeas and nays.
(2) Any joint resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents) and shall be v**ed on within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.
(3) Such a joint resolution passed by one House shall be referred to the appropriate committee of the other House and shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee and shall thereupon become the pending business of such House and shall be v**ed upon within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.
(4) In the case of any disagreement between the two Houses of Congress with respect to a joint resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such joint resolution within six calendar days after the day on which managers on the part of the Senate and the House have been appointed. Notwithstanding any rule in either House concerning the printing of conference reports or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed in the House in which such report is filed first. In the event the conferees are unable to agree within forty-eight hours, they shall report back to their respective Houses in disagreement.
(5) Paragraphs (1)–(4) of this subsection, subsection (b) of this section, and section 1651(b) of this title are enacted by Congress—
(A) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in the House in the case of resolutions described by this subsection; and they supersede other rules only to the extent that they are inconsistent therewith; and
(B) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.
(d) Automatic termination of national emergency; continuation notice from President to Congress; publication in Federal Register
Any national emergency declared by the President in accordance with this subchapter, and not otherwise previously terminated, shall terminate on the anniversary of the declaration of that emergency if, within the ninety-day period prior to each anniversary date, the President does not publish in the Federal Register and t***smit to the Congress a notice stating that such emergency is to continue in effect after such anniversary.
(Pub. L. 94–412, title II, § 202, Sept. 14, 1976, 90 Stat. 1255; Pub. L. 99–93, title VIII, § 801, Aug. 16, 1985, 99 Stat. 448.)

https://www.law.cornell.edu/uscode/text/50/1622