Congress passed the National Emergencies Act in 1976. The Act consolidated a hodgepodge of Congressionally-authorized presidential powers, while not specifically intruding into executive authority. Mostly, it’s a way to keep track of the myriad emergencies declared by various presidents, giving Congress a tool to count them and determine which ones are still in effect.
There are 31 Presidential Emergency Orders still in effect according to the Brennan Center. (I had no idea we had so many world-endangering emergencies.) They range from Jimmy Carter’s order blocking Iranian government property in 1979, to “Blocking Property of Certain Persons Contribut- ing to the Situation in Nicaragua” issued by President Trump in November 2018.
One of these emergencies was declared by Bill Clinton in 1995. It’s titled “Blocking Assets and Prohibiting Transactions With Significant Narcotics Traffickers.” Of particular interest is Section 4.
Sec. 4. The Secretary of the Treasury, in consultation with the Attorney General and the Secretary of State, is hereby authorized to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA as may be necessary to carry out this order. The Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the United States Government. All agencies of the United States Government are hereby directed to take all appropriate measures within their authority to carry out this order.
The IEEPA refers to the “International Emergency Economic Powers Act” which is supported by 50 U.S. Code § 1702. Presidential authorities.
Section C of this law give the president all kinds of power in the event the U.S. is attacked. Economic power to confiscate assets.
(C)when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals, confiscate any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided, or engaged in such hostilities or attacks against the United States; and all right, title, and interest in any property so confiscated shall vest, when, as, and upon the terms directed by the President, in such agency or person as the President may designate from time to time, and upon such terms and conditions as the President may prescribe, such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes.Cornell Law School, 50 USC §1702, Legal Information Institute.
Here’s where it gets interesting.
Joaquín Guzmán Loera, a.k.a. El Chapo, was just convicted and sentenced to life in SuperMax. El Chapo’s long list of crimes against decency and humanity include various actions that could easily be interpreted as acts of war.
The top charge of the Brooklyn indictment named Mr. Guzmán as a principal leader of a “continuing criminal enterprise” to purchase drugs from suppliers in Colombia, Ecuador, Panama and Mexico’s Golden Triangle — an area including the states of Sinaloa, Durango and Chihuahua where most of the country’s heroin and marijuana are produced.
It also accused him of earning a jaw-dropping $14 billion during his career by smuggling up to 200 tons of drugs across the United States border in an array of yachts, speedboats, long-range fishing boats, airplanes, cargo trains, semi-submersible submarines, tractor-trailers filled with frozen meat and cans of jalapeños and yet another tunnel (hidden under a pool table in Agua Prieta, Mexico.)El Chapo Found Guilty on All Counts; Faces Life in Prison, New York Times, Feb. 12, 2019
El Chapo famously escaped from a Mexican prison by having a tunnel dug directly beneath his cell’s shower. He had thoroughly bought and paid for Mexican government officials, including an alleged $100 million payoff to former Mexican president Enrique Peña Nieto.
If President Trump declared the imprisoned drug lord as the subject of a national emergency and seized his assets to build the border wall, what federal judge would defend such a villainous devil as El Chapo? (Guaranteed, some liberal federal bench warmer would do it.) But it’s not a good look.
Declaring a national emergency turns out to be no big whup in any case. We’ve got more emergencies than Carter’s has liver pills. And a great number of them qualify under the IEEPA. It would take a very big stretch for a federal court to drum up enough precedent to overturn a presidential power explicitly granted (and likely a plenary power in any case) for the president to protect our nation.
Whatever cash El Chapo might have laying around (billions, probably) would be more than enough to build Trump’s wall…and have Mexico pay for it. (Maybe that 2016 meeting then-candidate Trump had with then-president Nieto yielded more than just a photo op. Who knows what conversations might have transpired between the two men?)
And if this emergency is a real thing and not Trump fan fiction, we might just have ourselves a solution that eluded politicians for 30 years.