Napolitano Wrong, As Usual

As usual, the open-borders, chamber-of-commerce media, including FoxNews rushed out to tell you what you need to know.  As usual, they intentionally mislead you about the nature of the law. While I’ve already covered this issue, demonstrating plainly that President Trump has the authority, the media is great at lying and propagandizing, and sadly, that includes FoxNews on immigration-related issues.  Everything is squeezed through the filters they want you to see.  Let’s take a look at what FoxNews “Judicial Analyst” Andrew Napolitano has to say, and let’s see about the facts.  First, the video:

Now let’s analyze Napolitano’s claims and assertions about the law, which I’ve here paraphrased and condensed for further examination:

  • Presidents can’t seize property under emergency declarations.
  • Presidents can’t spend money without congressional authorization in an emergency.
  • The President must “make a case” for a declared emergency.
  • If the President had authority to spend money under emergencies, we’d have seen it before, but we haven’t.
  • Sometimes Congress has “looked the other way” when Presidents reallocate defense money from one use to another, but it doesn’t make it lawful.

First, as a general observation, let it be acknowledged that in certain respect, Andrew Napolitano is a radical libertarian on immigration generally, which is a strong reason for FoxNews to have picked somebody else to provide “Judicial Analysis.”  Naturally, FoxNews is itself a corporation that favor open borders, so it’s easy enough to understand their motives in picking open border hacks like Napolitano to make this particular case.

The first assertion of Napolitano was that the President cannot seize property under emergency declarations.

Let us go right to a pretty open-and-shut case: Roosevelt ordered the surrender of privately owned gold and gold certificates to the Federal Reserve on 5 April, 1933.  This was done under executive order 6102, with authority arising from the Trading With the Enemy Act of 1917, as amended. Gold is private property. Roosevelt was acting pursuant to an emergency he declared. Not convinced? Let’s go on to a second example, shall we?  In 1944, Roosevelt ordered the plants, offices, and warehouses of Montgomery Ward to be seized in order to force compliance with an emergency-based order of collective bargaining with a labor union, due to the ongoing war, which was the basis of the emergency. (World War II.)

Let’s just stop right there on Napolitano’s first point.  He’s busted.  Thoroughly.  There are hundreds more examples where Presidents made seizures of private property in time of war or emergency.  It’s called the “rule of necessity,” and it is the legal basis for all emergency doctrine.  Like most libertarians, I find such authority despicable, but they exist, have been exercised, and precedents must be recognized, as all the “wise judicial analysts” like to insist.

The Law: 1  Andrew Napolitano: 0

His next assertion was that Presidents can’t spend money without authorization by Congress in an emergency.  Let’s ask a Democrat Congressman:


Imagine that!  In addition to this, however, there are at least three known instances of Presidents’ spending without any prior Congressional appropriations:

  • Washington’s Unilateral spending to suppress the 1794 Whiskey Rebellion
  • Jefferson’s purchases of saltpepper and sulphur after the Chesapeake incident
  • Lincoln’s advance of $2 million to purchase supplies in advance of the Civil War in 1861

(See pages 22-23 of the following PDF from Harvard Law:  Constitutionality of Executive Spending)

These are older examples, but if it was good enough for Washington, Jefferson, and Lincoln, it’s probably good enough for President Trump.

The Law: 2  Andrew Napolitano: 0

His next assertion was that Presidents must “make a case” to declare emergencies.  This implies that a President must go find approval.  That’s not the case. In point of fact, all a president must do is issue an emergency declaration, and point to his legal authority, and then act.  This has been done repeatedly.

The Law: 3  Andrew Napolitano: 0

His next assertion has already been covered: He claimed that if the President had such authority, we’d have seen it used before, but we haven’t.  See Washington, Jefferson, and Lincoln above.

The Law: 4  Andrew Napolitano: 0

His last general assertion is that Congress may have “looked the other way” when it suited them, but that it isn’t lawful.

The problem with this notion is that legal precedents are born of such practices.  If Congress historically “looks the other way,” time after time, permitting the President to do such things without challenging them, it can also be interpreted as an endorsement of that action, or at least an affirmation of its legitimacy. In short, the court could very well view it as a precedent that bears upon their decisions thereafter.  “Looking the other way” once or twice might be tantamount to surrendering the issue in perpetuity.

The Law: 5 Andrew Napolitano: 0

Of course, there was at least one more assertion that had been made by Brian Kilmeade in the video clip above.  He mentioned that one couldn’t rightly term this an “emergency” because it would take too long.

This is a bizarre point.  The United States has been operating under all sorts of emergency statutes for DECADES, some of them continuously since the days of Jimmy Carter, and even earlier.  Read this fascinating article.

Imagine that, and yes, score Mr. Kilmeade a big fat zero.

It’s time for the left and the pro-amnesty, open-borders media and political culture to shut the Hell up and get out of President Trump’s way.  If he declares an emergency, he’ll have every bit of law and precedence on his side.

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