政一B 邱科翰 (2-1)

姓名 : 邱科翰

班級 : 政一B

學號 : 07114248

[標題] How emergency powers could be used to build Trump's wall

[內文]

US President Donald Trump plans to make use of emergency powers to secure funding for his proposed US-Mexico border wall.

Invoking a national emergency could enable Mr Trump to bypass Congress and access military funds and resources. But what are these emergency powers, and is using them that simple?

What exactly is a state of emergency?

A state of emergency is usually declared in times of national crisis. In this case, Mr Trump has claimed there is a migration crisis on the US-Mexico border.

Declaring a national emergency gives the president "access to special powers that are contained in more than 100 other laws", said Elizabeth Goitein, co-director of the Brennan Center's Liberty and National Security Program.

Those powers effectively allow the president to bypass the usual political process.

"Obviously, the intent is to provide for badly needed flexibility when there are urgent crises which Congress does not have time to address," Ms Goitein said.

Is there really a border emergency?

More than 2,000 people were turned away or arrested at the border each day during November 2018. Supporters of Mr Trump's plans for a wall have said the numbers constitute an emergency.

Others argue the migration across the southern border is far lower than a decade ago, and many of the thousands of people who travelled north from countries like Honduras are presenting themselves as asylum seekers, looking to enter the country legally.

Ms Goitein, an expert on presidential emergency powers, said she did not believe the situation constituted a national emergency.

"It needs to be something fast-moving, totally unforeseen, it is meant to be a stopgap measure," she said. "This is not such a thing and it would be a tremendous abuse of power to invoke just to short-circuit the political process."

Ms Goitein pointed to two sections of the law which Mr Trump could take advantage of. One would allow the redirection of funds for military projects already approved by Congress, the other would require the administration to prove the wall amounts to a military construction.

Neither are a "slam dunk" for the president, who must cite one of the laws as the legal basis for his declaration, Ms Goitein said.

Can Congress block a national emergency?

The National Emergencies Act contains a clause that allows Congress to terminate the emergency status - provided both houses agree and the president does not veto.

With a comfortable majority in the House, Democrats could pass such a resolution to the Senate. The Republicans control the Senate, but a number of Republican senators have been vocal in their unease about the president invoking a national emergency.

The dissenting Republicans include 2012 presidential candidate and new senator for Utah Mitt Romney, the Florida senator Marco Rubio, and the senator from Maine Lisa Murkowski, who said the move was "of dubious constitutionality".

The resolution would however still require Mr Trump's signature to pass, allowing him to veto it. A supermajority in both houses of Congress is needed to overturn a presidential veto.

There is another option of blocking the move through the courts - which is what happened when President Harry Truman tried to nationalise the steel industry during the Korean War, setting a legal precedent.

"If Harry Truman couldn't nationalise the steel industry during wartime, this president doesn't have the power to declare an emergency and build a multibillion-dollar wall on the border," Adam Schiff, the House intelligence committee chairman, told CNN.

How frequently do presidents use the emergency act?

Mr Trump's predecessor, Barack Obama, used it 13 times, while his predecessor George W Bush used it 12 times. If Mr Trump goes ahead with declaring a national emergency, it would be the fourth of his administration.

But emergency declarations by previous presidents have been overwhelmingly used for addressing foreign policy crises - including blocking terrorism-linked entities from accessing funds or prohibiting investment in nations associated with human rights abuses.

"It's extremely rare for a president to declare a national emergency in a bid to fund domestic construction projects, particularly one that Congress has explicitly refused to fund," Andrew Boyle, an attorney in the national security program at the Brennan Center for Justice, told the Associated Press news agency. "The ones that former presidents declared are of a different sort."

Mr Trump's decision to apply the powers to overcome a partisan impasse over border security has struck politicians on both sides of the aisle as a deviation from the intended use of the act.

"It would be a pretty dramatic expansion of how this was used in the past," said the Republican senator Ron Johnson.

Some previous uses were for issues like the H1N1 influenza epidemic and have since ended. Others are more general and continue to this day, like blocking the property of people "engaging in significant malicious cyber-enabled activities".

Perhaps the most well-known occasion a president used his powers was in the case of Franklin D Roosevelt, who used them to order the internment of more than 110,000 Japanese-Americans in the months after the 1941 attack on Pearl Harbour.

George W Bush used emergency powers in the wake of the 11 September 2001 World Trade Centre attack to sign off wiretapping and interrogation methods later decried as torture.

The National Emergencies Act is not used to respond natural disasters.

…

[相關憲法條文]

憲法第 63 條 : 立法院有議決法律案、預算案、戒嚴案、大赦案、宣戰案、媾和案、條約案及國家其他重要事項之權。

憲法增修條文第 2 條 (節選) :總統為避免國家或人民遭遇緊急危難或應付財政經濟上重大變故，得經行政院會議之決議發布緊急命令，為必要之處置，不受憲法第四十三條之限制。但須於發布命令後十日內提交立法院追認，如立法院不同意時，該緊急命令立即失效。

憲法增修條文第 3 條 (節選) : 行政院依左列規定，對立法院負責，憲法第五十七條之規定，停止適用：

二、行政院對於立法院決議之法律案、預算案、條約案，如認為有窒礙難行時，得經總統之核可，於該決議案送達行政院十日內，移請立法院覆議。立法院對於行政院移請覆議案，應於送達十五日內作成決議。

如為休會期間，立法院應於七日內自行集會，並於開議十五日內作成決議。覆議案逾期未議決者，原決議失效。覆議時，如經全體立法委員二分之一以上決議維持原案，行政院院長應即接受該決議。

國家機關之職權、設立程序及總員額，得以法律為準則性之規定。

各機關之組織、編制及員額，應依前項法律，基於政策或業務需要決定之。

[相關法條]

50 U.S. Code § 1621 : (a) With respect to Acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency. Such proclamation shall immediately be transmitted to the Congress and published in the Federal Register.

(b) Any provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect (1) only when the President (in accordance with subsection (a) of this section), specifically declares a national emergency, and (2) only in accordance with this chapter. No law enacted after September 14, 1976, shall supersede this subchapter unless it does so in specific terms, referring to this subchapter, and declaring that the new law supersedes the provisions of this subchapter.

50 U.S. Code § 1631 : When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress.

50 U.S. Code § 1641 : (a) Maintenance of file and index of Presidential orders, rules and regulations during national emergency

When the President declares a national emergency, or Congress declares war, the President shall be responsible for maintaining a file and index of all significant orders of the President, including Executive orders and proclamations, and each Executive agency shall maintain a file and index of all rules and regulations, issued during such emergency or war issued pursuant to such declarations.

(b) Presidential orders, rules and regulations; transmittal to Congress

All such significant orders of the President, including Executive orders, and such rules and regulations shall be transmitted to the Congress promptly under means to assure confidentiality where appropriate.

(c) Expenditures during national emergency; Presidential reports to Congress

When the President declares a national emergency or Congress declares war, the President shall transmit to Congress, within ninety days after the end of each six-month period after such declaration, a report on the total expenditures incurred by the United States Government during such six-month period which are directly attributable to the exercise of powers and authorities conferred by such declaration. Not later than ninety days after the termination of each such emergency or war, the President shall transmit a final report on all such expenditures.

…

心得評論：

While there are many things to talk about in this highly controversial act taken by US President Donald Trump, from a comparative point of view, I would just focus on the aspect of how emergency powers were defined and work in the US and Taiwan. 

The US National Emergencies Act, passed in 1976, grants the president 136 special powers reserved in other laws, and those laws only (which vary from clear air to international sanctions to military construction). In Taiwan, there are no “national emergencies acts” or similar codes to specify the boundaries of emergency powers of the president. Instead, Article 2 of the Constitution Amendments stated that the president could issue  “emergency orders” to prevent the state or its citizens from “sudden crisis” or “financial incidents”. This approach differs from the American National Emergencies Act, which did not specify the situation required to declare an emergency, but rather limiting the powers through 136 laws. 

In terms of the limits concerning emergency powers, the constitution of the ROC (Taiwan) states that the emergency order must be voted on by parliament within ten days, and if a simple majority wasn’t passed, the emergency order is terminated. In the US, terminating an emergency status is much harder, as it requires both houses to agree and the president not vetoing the decision. If the president vetoes the decision, it would make both houses harder to overrun the president’s decision. The ROC (Taiwan) constitution does not include such measures, which is something I believe the legislative could work on in the future. 

While there are 32 national emergencies currently in effect in the United States, emergency orders were only used 11 times in the past 71 years by four presidents of the ROC. And unlike US emergency powers that mostly focus on foreign affairs, presidents of the ROC use emergency orders to mainly address internal issues. And, unlike emergency powers in the US, which can’t be used during natural disasters, the most recent emergency order in Taiwan (ROC) was used to deal with a natural disaster, an earthquake, to be precise. 

Which system is better depends on one’s opinion, but I still think that Taiwan (ROC) needs a more precise, structured, and regulated Emergencies Act to prevent power abuse. Especially now, with Trump making this controversial move, it reminds people just how easily a leader could extend his power and compromise the democratic process.