Anchor of Law & Crime Network, Bob Bianchi, discusses President Trump’s address to the nation tonight on Fox News with Shepard Smith. Bianchi discusses the controversial threat to use the National Emergency Act to bypass congress to fund the wall. Bianchi discusses the law and politics behind what he feels the president may do.
President Trump threatens to use emergency powers to bypass congress failure to fund for the “wall.”
January 8th, 2019
Shepard Smith: Updating now, our top story, President Trump preparing to make his case for his border wall tonight in a primetime address after suggesting he may declare a national emergency to get it built. Critics say there is no emergency and that it’s only a ploy to get around Congress. Analysist say if President Trump does try to declare an emergency, he’ll likely face battles both in the Congress and in the courts. Kristen Fisher reporting live from Capitol Hill.
Kristen Fisher: They are using words like tyrant to describe President Trump if he decides to circumvent Congress and declare a national emergency. The house Majority Leader Steny Hoyer he put it like this, quote, I don’t think the President has that authority. I think it’s analogous to the government that we’ve seen all over the world applying martial law to justify them doing whatever they want, to whomever they want, whenever they want to do it. But other Democrats like, Senator Joe Manchin say, that President Trump has a right to do this. He blames Congress for giving too much power to the executive branch.
Joe Manchin: If the president declares an emergency, he has a right to do that. And it will probably go to the courts to be contested, if that gets us out of a shutdown then so be it, I want to get out this shut down.
Kristen Fisher: And in just four days, it will be the longest government shutdown ever in the history of the United States. Shep?
Shepard Smith: Now we still don’t know if the President actually plans to declare an emergency, right?
Kristen Fisher: Yes, we don’t know, it’s certainly a very big possibility. We know the President Trump has been considering it very seriously, Vice President Mike Pence said that the White House counsel’s office is looking into the legality of it and just this morning he was asked point blank, do you expect President Trump to declare a national emergency during his prime time address tonight? Here’s how we answered.
Mike Pence: What I expect the President will do tonight is explain to the American people that we have a humanitarian and security crisis at our southern border.
Kristen Fisher: So, he didn’t rule it out but Democrats are already down vowing to fight this in court and in Congress if President Trump does decide to declare a national emergency tonight or at any other point in an effort to try to end this shutdown Shep.
Shepard Smith: Kristen Fisher live for us, thanks. Let’s get the legalese of this now Bob Bianchi, is with the us, he’s a former attorney, former Prosecutor. Emergency, national emergency, humanitarian crisis, Democrats say there’s no evidence but if he declares an emergency, I think the courts will decide, is that how this works?
Robert Bianchi: Yeah well eventually there will be follow up with the courtship. But what would happen here is that the Congress is given so much power to the President to act in terms of a national security crisis under the law. That’s really not defined and there’s about a hundred laws that allow him to be able to take funds that haven’t been dedicated in various areas and to be able to use them for protection of the border, protection against drug smugglers, it allows the army and then the secretary of defense and the secretary of army to build the projects that were supposed to be dedicated for here but if it’s a national emergency they can use the money for over here. That’s what the Trump team is going to do. I found it very curious that all the sudden we started getting away from the idea of concrete walls and started calling them slats and fences that’s a parroting language in some of these laws that give the President authority to be able to move that money around. And then when they’re using terms like drug smugglers, and gangs, and human trafficking, and terrorist they’re creating the reason why he can say it’s a national emergency. Of course, those on the other side are going to say wait a minute this is purely a political thing, you’re trying to fulfill a campaign promise, those things do not exist.
Shepard Smith: Actually no, the campaign promise was that the Mexicans would pay for it that was the promise.
Robert Bianchi: Fair enough. But they’re going to be arguing that you cannot use this these laws of these powers, you’re using them as a mask, you’re using them as a smoke screen to get through the back door, which gets you to the front door, and that’s where the court challenge will be.
Shepard Smith: Well, in court you have to have standing to challenge, who would have standing or what entity would have standing?
Robert Bianchi: You know, when you’re talking about shifting money for projects that have already been dedicated perhaps maybe to contractors or money that’s not going to go to the place where was originally designed but moved over towards building a wall. Those people could have standing, to people whose property would be affected could have standing. It’s going to be a real issue as to whether the Congress has standing because typically speaking, they typically don’t have standing in these scenarios, but I am certain I am assured without question they will find somebody that has got the standing to file the suit, to get it before the court.
Shepard Smith: Well the government is shut down or portions of the government are shut down in the interim, is this a process that could potentially move along quickly? Is it something that might be drawn out?
Robert Bianchi: I think it’s going to move quickly because in essence with this act.
Shepard Smith: That is again predicated on, we don’t know if he will do this, we know he has said he may. And we’re talking about the possibilities if he does.
Robert Bianchi: Well, the National Emergency Act by definition means, we have an emergency, we have a crisis, I need to act with dispatch of course the other side’s going to say well you had two years to do that with an all Republican Congress and you didn’t do anything about it. Therefore, that is just a smokescreen that’s a false use of that act but that’s what he’s going to do is going to move quickly. And I think the courts are going to hear it quickly but to me politically it makes perfect sense. I expect to hear today here’s a date certain, if you don’t do it, I’m going to evoke my powers as the President of the national emergency act, and under one of these sub acts that allows me to move funds around to build this border wall, to protect our country, because this is a national security interest, and then if I get that, if I do that, he’s going to release the shutdown. Now, he looks like a hero to his base because he’s taking aggressive action, he opens up government, and now the courts can decide. Remember the travel ban they tried to do it, and it got knocked down. But then eventually when they tweaked it, it was put in place. So, you know, there’s going to be a lot of lawyering. It will be very, very, difficult.
Shepard Smith: What if an emergency is not clearly defined.
Robert Bianchi: That’s the thing about what Congress did here, it is not clearly defined, it is up to the discretion of the President to make that call. That’s where the power resides, and courts are very reluctant to substitute their own judgment for the judgment given by law to the executive branch of government in the President.
Shepard Smith: Bob Bianchi, thank you.
Robert Bianchi: You got it Shep.