Daniel Phillips, Black Hebrew Israelites Bear Blame for Friday’s Confrontation with Catholic Students

It seems that whenever there is a clash with ethnic overtones, and some young men sporting red MAGA hats are involved, the knee jerk reaction is to blame the youth in MAGA garb. So automatic this reaction has become, that the original impression (Trump supporters are all evil, racist, violent and ignorant) lingers long after more evidence surfaces demonstrating blame belongs to numerous parties. 

Let’s take this incident that happened in front of the Lincoln Memorial on Friday, during the March for Life Event. With so many people gathered already for political activism, the event attracted fringe elements of society attempting to publicize their agenda. One such group was the Black Hebrew Israelites. 

The Black Hebrew Israelites stood at the base of the steps, spewing racist, offensive hate. Their goal was to spark confrontation, at which they succeeded several times. 

Eventually, the Black Hebrew Israelites began an offensive roll of insults against the Catholic Church. At this point, the group begins to attract the attention of male students from Covington Catholic High School, many of whom happen to be wearing red MAGA hats.

The Black Hebrew Israelites then spews hate and insults directly at the students. The initial reaction was for the students to leave. Over the next twenty to twenty-five minutes, as the group continues to spew hatred, little by little, the student gather on the steps in back of and to the right of the group, keeping a distance of several yards.  (Some have reported that the students were waiting for buses.)

As the speakers begin to notice the growth in students in their audience, they target the students directly for an offensive tirade. The students respond by drowning out the speakers with sports cheers and chants. As the adrenaline flows, one attention-grabbing student runs to the front of his friends, and strips his shirt off as his friends scream in support. The boy then leads the groups in what appears to be a tribal-like cheer (the Haka?) that many sports teams have adopted as a show of intimidation. The crowd howls its approval. 

The crowd continues with a more popular and recognizable sports chant. It was at this point that Daniel Phillips, an activist for indigenous people’s rights, decided to intervene. Beating a rhythmic pattern on a hand-held drum, engaging in a chant, Phillips marched directly toward and then into the crowd of students. Phillips later stated he approached the students, and not the Black Hebrew Israelites, because the group of students was much larger and mostly white. 

As Phillips approached the students, they gave no ground. Phillips walked straight towards one student, who smirked, but who did not move as Phillips banged the drum in his face. The rest of the students reacted by chanting as well, and then clapping in time with the drum. 

The chant devolved into a chant made famous by the Florida State Seminoles, and popular for other teams with Native American mascots: The Chop. This includes the Atlanta Braves, where Deion Sanders brought the chant after attending FSU.

Certainly, this is not Christian behavior, and deserves a talk from Christian Youth leaders on how to respond to such aggressive behavior by others in a way that is consistent with Christian values and beliefs. But the worst thing the students did was to use sports chants popular with teams that have Native American mascots. The students were not the aggressors. 

Daniel Phillips must shoulder some blame for being unduly aggressive. He has himself admitted that he chose to talk toward and into the group of students because they were a larger group and mostly white. Absent from his analysis was the provocations consistently made by the Black Hebrew Israelites. The group had been spewing hatred aimed at numerous ethnicities, and religious groups. Yet, in the reporting, almost any recognition of this offense behavior, let alone condemnation of the group, is absent. For the mainstream press, it is enough that there was a confrontation and white kids involved wearing MAGA hats. Obviously, the Trump supporters must be to blame. 

By:  William J. Kovatch, Jr. 

Note:  I used to consider myself a Republican until Trump won the nomination in 2016. I am no supporter of Trump, or of the Republican Party, which appears to be full of nothing but sycophants. Nonetheless, I refuse to jump on a popular band wagon when a full analysis of the facts points in a different direction. The true problem with modern American journalism, I believe, is laziness. Just report the same line you were programmed to believe over and over. I pray greater objectivity comes back to American press soon.

Can Trump Declare a National Emergency to Build His Wall? The Answer Is a Little More Complicated than Trump Would Like You to Believe.

It has been about three weeks since President Trump refused to sign legislation that funded the government, but did not appropriate money for his border wall, causing a partial government shutdown. With 800,000 government employees poised to miss their first paycheck since the shutdown, Trump addressed the country on prime time TV to make his case for the wall.  The day after the televised statement, Trump met with Speaker of the House Nancy Pelosi and Senate Minority Leader Chuck Schumer to discuss the possibility of re-opening the government.  According to Schumer, Trump pounded on a table and stormed out the room complaining that the meeting was a waste of his time when Pelosi made it clear she would not support Trump’s wall.  Schumer has referred to Trump’s behavior as rule by temper tantrum.

This week, a small number of House Republicans joined House Democrats in voting for a continuing resolution which would have re-opened the government without providing funds for the wall.  The support from House Republicans possibly signals growing pressure to end the shutdown and re-open the government.  In response, Trump has stepped up his talk of declaring a national emergency in order to fund the construction of the wall without congressional approval.  Trump has said multiple times that the law is 100% behind him in declaring the national emergency.

While the President may want the public to think that this is a simple question, under U.S. law, this is really two questions.  The answer to one may be simple.  The answer to the other may not.

The first question is whether the President has the authority to declare a national emergency.  In answering this question, it is important to keep in mind that the Constitution does not mention emergency powers of the President.  This means that the President would not have the unilateral authority to claim broader authority than those specifically granted through the Constitution unless Congress has acted. 

In this regard, through the National Emergencies Act of 1976, Congress granted the President the authority to declare a national emergency through a proclamation published in the Federal Registry. Thus, the answer to the first question is indeed simple.  Yes, the President may declare a national emergency.

But the President cannot claim unlimited powers through the declaration of a national emergency.  That is, he cannot use the declaration of a national emergency as a carte blanche power grab.  To the contrary, the powers available to the President are limited. To define the breadth of presidential emergency powers, it is again necessary to look to congressional action.

The National Emergencies Act of 1976 does not itself grant emergency powers to the President  Congress has passed numerous laws granting the President specific powers usable during a period of national emergency.  The National Emergencies Act was meant to define how the President may invoke the emergency powers granted by other statutes.

Before the President can use any emergency power granted by statute, the President must state the specific power to be used.  He can do this either through the original Proclamation, or through a subsequent Executive Order published in the Federal Register.

Determining whether the President may use the declaration of a national emergency specifically to build a border wall requires an analysis of numerous statues.  So far, in his public comments concerning the wall, Trump has identified the existence of construction projects that were included in the budget, but for which funds have not been spent or encumbered.

This points to two specific statutes Trump may be planning to invoke to fund his wall.  The first permits the reallocation of funds appropriated for military construction projects that have not yet been obligated:

In the event of a declaration of war or the declaration by the President of a national emergency in accordance with the National Emergencies Act that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.

10 U.S.C. 2808.

The second permits the termination of an Army civil works project that is not essential for national and use the funds for Army civil works projects that are essential for national defense:

In the event of a declaration of war or a declaration by the President of a national emergency in accordance with the National Emergencies Act that requires or may require use of the Armed Forces, the Secretary, without regard to any other provision of law, may (1) terminate or defer the construction, operation, maintenance, or repair of any Department of the Army civil works project that he deems not essential to the national defense, and (2) apply the resources of the Department of the Army’s civil works program, including funds, personnel, and equipment, to construct or assist in the construction, operation, maintenance, and repair of authorized civil works, military construction, and civil defense projects that are essential to the national defense.

33 U.S.C. 2293.

The question that remains in the application of these statutes is whether the border wall is for the use of the armed forces, or is essential for national defense.

These are questions that are likely to be addressed through litigation should Trump invoke emergency powers to fund the building of the wall.  One hurdle to those who may challenge Trump’s actions is whether a federal court will even intervene to decide the issue.

There are times when a court has jurisdiction over a case, but nonetheless decides that it is not appropriate to issue an opinion.  This is called the doctrine of justiciability.  One such circumstance where a court may find a case non-justiciable is the political question doctrine.

The political question doctrine springs from the idea that courts may decide issues of law, but are not an appropriate forum for political issues.  The courts may find an issue non-justiciable as a political question, for example, when a matter is explicitly assigned to a particular branch of government through the Constitution,  The Constitution explicitly grants Congress the power to declare war.  As a result, courts are not likely to review such a declaration of war.

The political question doctrine may be invoked where the court could not resolve an issue without expressing a lack of respect for a coordinate branch of government, where it is impossible for a court to devise a manageable standard to resolve the issue, where the resolution of the issue first requires a policy decision that is beyond the discretion of the court, and whether there is a possibility of embarassment that varying policy decisions would be made by different branches of government.

This is not to say that the courts will never question the President’s use of an emergency power.  To the contrary, in 1952 the U.S. Supreme Court addressed President Truman’s attempt to seize U.S. steel mills during a strike in order to provide a steady supply of steel for military use during the prosecution of the Korean War and found the action to be unconstitutional.  Youngtown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Concerning the merits of whether a national emergency exists, a federal court is likely to find that issue to be a non-justiciable political question.  One main reason is that Congress provided no criteria for determining when such an emergency exists.  In this circumstance, courts are likely to be uncomfortable to define the criteria that creates an emergency whole cloth, without further guidance from Congress.  Indeed, the lack of a definition of criteria could very well be intentional to allow the President flexibility in responding to a complicated situation that may need immediate action.

On whether the actual exercise of the power invoked is appropriate presents a different type of question.  Under either statute, appropriated but unspent construction funds cannot be reallocated for just any question.  They must be appropriated for a project necessary for national defense or for the use of the military.

The main intended purpose of the wall is to stem the entry of aliens into the United States who lack legal authority to come in.  That is an immigration issue.  The President has mentioned the need to stem the inflow of illegal drugs.  That is a criminal justice purpose.  The President has variously claimed that there is an imminent threat of the entry of known terrorists.  However, statistic undercut this argument.  Only a handful of known terrorists have been apprehending in recent years attempting to cross the southern border legally.  Thus, whether the wall is essential to national defense appears to be a question a court can decide with clear standards and without causing undue embarrassment to the coordinate branches of government.

Likewise, a court could easily determine which governmental department will use the wall.  The U.S. military is prohibited from enforcing domestic criminal law.  The military is not charged with enforcing immigration law.  That job falls to the Department of Homeland Security and the Justice Department.  Thus, again, the question may not be considered a political one.

Trump is correct that the law is behind him if he were to declare a national emergency concerning the inflow of undocumented aliens over the southern border.  But that does not mean that the specific invocation of powers would be an easy question.  To the contrary, the appropriation of funds for a border wall by reallocating budgeted but unspent funds for construction projects will likely spark complicated litigation.

By: William J. Kovatch, Jr.