January 9, 2019

Morning Joe welcomed legal analyst Danny Cevallos to discuss what legal constraints there are on Trump's powers if he declares a national emergency.

"The president has threatened if he doesn't get his $5 billion for this border wall, he may declare a national emergency," Willie Geist said.

"He stopped short of that and didn't do it in his nine-minute speech last night. If he does it, if he declares a national emergency, what would be the opposition he would face? What would be the pushback from the courts?"

"Fortunately, history gives us a precedent for this," Cevallos said.

"In 1942, the president ordered the Secretary of Commerce to take over the steel industry and nationalize it for the ongoing Korean war and it made it in record time to the Supreme Court which struck down the president's use of power. More important, Justice Jackson gave us the framework for analyzing whether or not the president exceeds his or her power when he acts without the approval of Congress, in fact, against the will of Congress. The short answer, in this third category the president acts and Congress opposes, the president usually loses but does not always lose. In fact, in 2015, there was a case in that category where the executive branch actually prevailed. for the most part, when the president acts against the will of Congress, even if he invokes his emergency powers, he will likely lose."

Geist asked if that mean there is now a definition of what constitutes a national emergency.

"It is not even defined in the Constitution other than suspending the writ of habeas corpus, so all of the president's sources of emergency powers come from emergency statutes and the Brennan Center identified 130 different sources of this power," Cevallos said.

"To say it is a patchwork quilt is an understatement. It's complicated. That's where President Trump thrives. Using the Truman precedent as an example, Justice Jackson's concurrence, the fascinating thing about this case, Youngstown, all six wrote a separate opinion so hard to say there is a majority opinion in that case. But this Jackson case gives us an analysis where critics say it doesn't really give us any answers other than to say in the situation where the president acts against the will of Congress, then the Supreme Court has to find Congress has zero power in that area in order to uphold the president's action -- even if he invokes emergency powers."

Geist asked if there is anything standing in Trump's way if he makes a declaration of a national emergency.

"Immediately, it is a unilateral decision by the president and the president alone. That's the way the system was designed. In times of emergency, that's what they are supposed to do, act immediately. They are reviewable, not only by Congress but the judicial branch. As we saw in the Youngstown Steel case, that got to the Supreme Court in record time, almost immediately, in record time, and I mean that literally, the Supreme Court can and will review that use of power."

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