Contours of a national emergency in the United States Are there any 'bright lines' that prevent an administration (not just the current administration, but future administrations as well) from regularly resorting to the national security argument when it can not find congressional support for its foreign policy initiatives?
Presidential power of that type might arise from congressional authorization, where Congress authorizes action when POTUS deems that such-and-such is the case. An example is 8 USC 1182(f), which says Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Explicit constitutional powers are not numerous, but include commanding the armed forces and overseeing execution of national law by appointing and removing executive officers. POTUS is constitutionally the federal official responsible for relations with foreign nations, so he can make treaties (subject to Senate approval) and executive agreements (not subject to approval), can appoint US ambassadors and can receive foreign ambassadors. Executive agreements have the greatest potential for being an avenue for POTUS to act contrary to Congress, but they are limited to agreements pursuant to legislation, treaty and constitutional authority (and, as agreements, are not unilateral). Congress was able to somewhat limit presidential military authority by statutes such as the War Powers Act, and in the policy statement at 50 USC 1541, Congress declares The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces The law limits the length of engagement of the military, without Congressional approval, but there is no toothful restriction on deploying the military for up to 60 days. 50 USC Ch. 34 more generally addressed "national emergencies", and started by declaring an end to all existing declared emergencies. Other sections of the law require Congress to be notified and emergencies to be published in the Federal Register. An emergency can be terminated by POTUS or by act of Congress, and after 6 months (and every 6 months thereafter), Congress shall meet to discuss the emergency. POTUS must also annually re-declare the emergency to keep it in force. These are procedural requirements, not content requirements. In general, you wold have to go through Title 50 to check for particular powers granted by Congress The International Emergency Economic Powers Act grants powers to POTUS, with the following limit: (a) Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat. (b) The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose. Any exercise of such authorities to deal with any new threat shall be based on a new declaration of national emergency which must be with respect to such threat. which appears more limiting than the War Powers Act. There is an extensive list of powers granted under 50 USC 1702, which in that domain could be called "bright" lines. Generally, the lines are only as bright as Congress has painted them.
The most relevant federal Obstruction of Justice type is from 18 USC 1505: Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress— I'm not sure if passed Articles of Impeachment count as an "inquiry", and I'm not sure whether failing to "send" them to the other house is "corruptly impeding". Even if those two conditions are met, members of Congress are immune to judicial process for acts taken while they are in session, as part of the Speech or Debate clause of the Constitution (Article 1, Section 6, Clause 1): ...shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. So, if the person in question is not a member of Congress acting in their official capacity and intentionally endeavors to prevent passed Articles of Impeachment from being sent from the House to the Senate (e.g. a courier intentionally failing to deliver them, or an IT person preventing the electronic form from being copied into the Senate's database), I do not know whether that could be considered Obstruction of Justice, as I doubt such a situation has ever been adjudicated. Given the publicity of the proceedings, such an impediment would probably be found out or overcome so quickly that no one would be inclined to do more than fire the perpetrator.
&quot;Martial law&quot; is not a cleanly-defined legal concept in US law, but it is generally understood to refer to placing a region of the US under military control. POTUS, Congress and state governors can do it, to some extent. Art. 1, §9 (speaking of powers denied to Congress) says that &quot;The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it&quot;. Suspending the Writ of Habeas Corpus is one fundamental element of &quot;martial law&quot;. Art. 2 §2 (presidential powers) grants relatively little power to POTUS, but does say &quot;The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States&quot;, so as commander in chief, POTUS can command the army, but in general requires authorization from Congress. At the outset of the Civil War, Lincoln declared a numbered of things which Congress ratified, but this did not include a declaration of martial law. In Ex parte Merryman, 17 F. Cas. 144, the Taney (Chief Justice of the Supreme Court of the United States) stated that &quot;the president, under the constitution of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it&quot;. Congress eventually retroactively legalized the suspension of habeas corpus. Without Congressional approval of the suspension of the Writ of Habeas Corpus, a &quot;declaration of martial law&quot; would be meaningless and toothless. The Posse Comitatus Act further limits the ability of the army to meddle in domestic affair, and 18 USC 1385 states that Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. One of authorizations by Congess is The Enforcement Acts, which empowered federal intervention when states refused to protect the constitutional rights of citizens, and this was invoked more recently during the Eisenhower administration and in connection with the Mississippi Burning murders. Another much older authorization is the Insurrection Act of 1807, now at 10 USC Ch. 13 allows use of the military (§252): Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion. The next section §253 would, no doubt, be the statutory provision invoked for use of the military: The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it— (1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution. The rhetoric that would need to be associated with such an executive order (sending in the troops) would resemble that in Texas v. Pennsylvania et al, which did not turn out well for POTUS. Moreover, nothing at all authorizes POTUS to declare elections void and to order new elections (therefore, the military cannot be employed to engage in such an illegal action).
You could almost define a country as, "an entity that can defend itself against invasions." Non-sovereign entities are indeed generally prohibited from deploying lethal autonomous defense systems like booby-traps. But governments and state-like actors, as a matter of practice, choose their own rules. laws-of-war and international-law are not like "regular" law: When it comes down to it, states only follow international conventions and treaties to the extent that they consider it to be in their own interest to do so. If you start mining your property, you will probably be forced to stop by local law enforcement. If a warlord starts mining his borders, he's going to get away with it until someone with more power convinces or forces him to stop. Was it "illegal" for Turkey to shoot down a Russian military aircraft? One could cite all sorts of laws and conventions to answer that question. But in practice the consequences of that act are limited to whatever Turkey allows, or to what Russia and its allies can impose on Turkey.
Both Congress and the state legislatures are expressly forbidden by the Constitution from passing bills of attainder. That means neither can ever pass a law that names an individual and says "they are suspended." It is so important that it's one of the very few restrictions on government that the original Constitution (before any amendments) prohibited in bot state and federal governments. (Also, a "bill" is not a law. It's what a legislature is considering making a law.)
The first paragraph on the nature of the concern in the ICIG letter to McGuire clarifies what the alleged violation of the law is: Here, the Complainant's Letter alleged, among other things, that the President of the United States, in a telephone call with Ukrainian President Volodymyr Zelenskyy on July 25, 2019, “sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid.” U.S. laws and regulations prohibit a foreign national, directly or indirectly, from making a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election. Similarly, U.S. laws and regulations prohibit a person from soliciting, accepting, or receiving such a contribution or donation from a foreign national, directly or indirectly, in connection with a Federal, State, or local election. Further, in the ICIG’s judgment, alleged conduct by a senior U.S. public official to seek foreign assistance to interfere in or influence a Federal election would constitute a “serious or flagrant problem [or] abuse” under 50 U.S.C. § 3033(k)(5)(G)(i), which would also potentially expose such a U.S. public official (or others acting in concert with the U.S. public official) to serious national security and counterintelligence risks with respect to foreign intelligence services aware of such alleged conduct. That is, it is alleged that it is a violation of federal election law for a foreign national to aid a US election (by providing information, which might be of value). The underlying statute is ambiguous. One reading is that the term refers to a deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information and also A serious or flagrant problem, abuse, violation of law or Executive order The alternative is to take the entire list and limit the scope of the violations etc. to those within the responsibility and authority of the Director of National Intelligence involving classified information The interpretive canon known as the "last antecedent rule" favor the narrowest scope possible the immiidately above phrase. The law does not require a Supreme Court quality analysis of the underlying law: the proper interpretation of that statute is far from obvious, see here. Whether or not the last antecedent rule would be actually invoked in a final appeal is very hard to say, but generally the courts disfavor the supposition that any statute is ever written ambiguously (that still doesn't tell us what the scope of the last phrase is). The wording of the ICIG letter clearly indicates his interpretation of the scope of the DNI phrase, as not being limited to only intelligence activities within the responsibility and authority of the Director of National Intelligence involving classified information. However, the ICIG letter also notes that the Director of National Intelligence has responsibility and authority pursuant to federal law and Executive Orders to administer and operate programs and activities related to potential foreign interference in a United States election Additionally, Executive Order 13848, Imposing Certain Sanctions in the Event of Foreign Influence in a United States Election declares that the ability of persons ... outside the United States to interfere in or undermine public confidence in United States elections... constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States putting the combination of foreign + elections within the scope of the DNI. The ICIG letter also reasons that alleged conduct by a senior U.S. public official to seek foreign assistance to interfere in or influence a Federal election would constitute a “serious or flagrant problem [or] abuse” under 50 U.S.C. § 3033(k)(5)(G)(i), which would also potentially expose such a U.S. public official (or others acting in concert with the U.S. public official) to serious national security and counterintelligence risks with respect to foreign intelligence services aware of such alleged conduct.
No punishment followed because those policies are not the law, and, even it was found out earlier, no Inspector General would have the authority to dismiss Mrs. Cliton, it's POTUS's prerogative, as I understand it. That is true for maybe 10 people max in a government department. For the tens or hundreds of thousands of employees who weren't appointed by the President to serve at their pleasure, violating policies can lead to suspension, fines, or dismissal.
Congress has always had the power to conduct an investigation and to issue subpoenas, although that power has just been assumed. It was first invoked in 1795, in the case of Robert Randall and Charles Whitney, in regards to an attempt to bribe members of Congress. This power ultimately follows from Congress's constitutional power to legislate augmented by the Necessary and Proper Clause, and (Barenblatt v. United States 360 U.S. 109) which implies powers to do things "in pursuance of its legislative concerns". It was there held that Congress's "legislative authority and that of the Subcommittee to conduct the inquiry under consideration here is unassailable". Anderson v. Dunn 19 US 204 earlier recognized the power of Congress to issue warrants and hold people to answer for charges – to conduct trials (in this case for torts against the Sergeant at Arms of the House), and notes that the Speaker is "duly authorized and required to attest and subscribe with his proper hand, all such writs, warrants, and subpoenas issued by order of the said house", which presupposed that the House has the power to give such orders. McGrain v. Daugherty 273 U.S. 135 held that "Deputies, with authority to execute warrants, may be appointed by the Sergeant-at-Arms of the Senate". Since Anderson, the courts have also recognized the power to hold a person in contempt for not obeying an order to testify: But what is the alternative? The argument obviously leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it. This result is fraught with too much absurdity not to bring into doubt the soundness of any argument from which it is derived. There are two kinds of sanctions for not testifying: the "inherent contempt" power, and statutory power. The former is a common-law sort of power officially recognized since Anderson. Statutory power is encoded in 2 USC 192, which says Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months This article provides a detailed analysis of the history and legal foundation of congressional comtempt power. Whether or not in the present case there is "contempt of Congress" can't really be answered yet. Congress does not have an absolute power to compel answers, e.g. the 5th Amendment protects witnesses in some ways, and Congress cannot compel a person to testify if doing so is against the law. There is a uniform refusal by governments to refuse to comment on any on-going investigation, which is often invoked in Congressional hearings. I don't know what the legal foundation of that position is, and there doesn't seem to be any case low on point. Once someone is punished for such refusal and appeals to SCOTUS, the picture should become clearer.