A Fishy Emergency Threatens the Republic

Friday morning, Trump declared a national emergency that he said would allow him to start building his wall by redirecting funds Congress has appropriated for other purposes. The speculation-to-action ratio has been particularly high since then, with political and legal experts giving conflicting views of what will happen next. Let me see if I can boil it down without adding to the confusion.

1. The declaration was made in bad faith. There is no national emergency on the southern border. Trump admitted as much: “I could do the wall over a longer period of time. I didn’t need to do this.”

As I explained two weeks ago (under the sub-head “and national emergencies”), the point of the national emergency process is to allow the President to respond to events that unfold too fast for Congress to take action. Whatever you think about the issues of immigration and smuggling on the Mexican border, they have been playing out over decades, and are less serious now than they have been at other times.

Congress has had plenty of time to consider appropriating money to build a wall, and has decided not to do it.

With no honest case to be made for either a national emergency or for circumventing Congress to build a wall, Trump once again gave a speech full of lies.

2. This is unlike any previous emergency declaration. As Trump rightly pointed out, presidents have declared national emergencies before (59 times since the National Emergencies Act was passed in 1976, according to Fox News’ Chris Wallace). But a national emergency declaration has never been used as a partisan weapon before. Wallace challenged Trump advisor Stephen Miller to “point to a single instance when the president asked Congress for money, Congress refused to give him that money and the president then invoked national emergency powers to get the money”. Miller could not answer.

A national emergency declaration has never been challenged in Congress or the courts before, but that’s because previous presidents have used them in uncontroversial ways, not because Trump is being specially persecuted by his opponents.

3. The money will be taken from more worthy projects. USA Today lists the sources.

$3.6 billion will come from a military construction fund, and White House officials admitted that “they did not yet know which military constructions might be cancelled or delayed by the move.” Military Times lists some possibilities:

a new vehicle maintenance shop at Camp Arifjan in Kuwait, drydock repairs at Joint Base Pearl Harbor-Hickam in Hawaii, F-35 hangar improvements at Luke Air Force Base in Arizona, ongoing hospital construction at Landstuhl Regional Medical Center in Germany, and new family housing builds in South Korea, Italy and Wisconsin.

Also: a middle school on an Army base in Kentucky. Lindsey Graham explained that “It’s better for the middle school kids in Kentucky to have a secure border.”

Another $2.5 billion will come from a Defense Department drug-interdiction program. So presumably it will be easier now to get drugs into the country by boat or plane. Trump’s bogus wall, which will do little to affect drug traffic, will squeeze out programs that actually catch drug smugglers.

4. Congress still has a chance to weigh in, but there’s a catch. As originally passed in 1976, the National Emergencies Act allowed what is known as a legislative veto: Congress could override the President’s declaration if both houses agreed to do so. This is, in fact, likely to happen. The Democratic House will pass a resolution against the emergency fairly easily, and the Republican Senate will probably follow suit. (In order to do so, all 47 Democrats and 4 Republicans will have to agree. Mitch McConnell can’t prevent the resolution from coming to the floor, and it can’t be filibustered.)

However, in 1983 the Supreme Court (in regard to a different law entirely) found legislative vetoes to be unconstitutional. As laid out in the Constitution, Congress passes laws and the President has an option to veto them. Congress can delegate its power to the President (as it did in the National Emergencies Act), but it can’t switch places with the President and give itself veto power over his decisions.

As a result, Congress can still undo the President’s declaration, but it requires a joint resolution, which is then subject to a presidential veto. A two-thirds majority of each house would then be necessary to override the President’s veto. This is currently considered unlikely, because not enough Republicans are willing to go against Trump.

So the most likely scenario goes like this: Congress passes a joint resolution against the emergency, the President vetoes it, and Congress fails to override the veto.

5. Then it’s up to the courts. Congress will sue on the grounds that its power of the purse has been usurped. States along the border will sue. Property owners whose land will be seized will sue. Some of those suits have already been filed. (Congress’ suit will probably wait until after its attempt to override the emergency declaration fails.) Then the courts will have to decide whether Trump’s emergency is legitimate.

Whatever conclusion you want to hear, I can point you to an expert who predicts it. Vox assembled 11 experts, and their responses amounted to: Judges shouldn’t OK this, but there’s just enough justification that they can if they want to.

The point of view most generous to Trump is that Congress screwed up when it passed the National Emergencies Act, so its power-of-the-purse is delegated, even if it shouldn’t be. The law doesn’t define “emergency”, but trusts the president not to abuse his power to declare one. Who knew we’d eventually have an untrustworthy president?

Some judges will feel that it’s not their job to second-guess Trump on this. That’s more-or-less how the Muslim Ban case came out. After the administration revised its first two obviously-unconstitutional Muslim bans, the third one passed muster — not because the 5-4 Supreme Court majority agreed with the bigoted pile of bullshit Trump used to justify it, but because five justices deferred to the president’s judgment and declined to examine the details.

As with the Muslim ban, this case hangs on the question of bad faith: How transparently faithless does the President have to be before a judge is obligated to notice?

The problem I have with the Congress-screwed-up view is that the original version of the law didn’t delegate this much power, because Congress retained the ability to override illegitimate emergencies. Now the President only needs one-third of one house to support him. So the Supreme Court changed something significant in the law when it rejected legislative vetoes.

So I would be tempted to make the same kind of argument that conservatives have made against the Affordable Care Act: The National Emergencies Act is a coherent whole, and you can’t invalidate the legislative veto while leaving the delegation-of-power intact. I haven’t heard anyone make that argument, so there must be some reason not to (aside from the fact that all of the currently active national emergencies become invalid, which might not be a bad thing).

6. And the people. This is something worth getting into the streets about. MoveOn has protests planned today, and no doubt there will be others soon.

If you live in a state or district represented by a Republican, you need to challenge your representative to defend the Republic. The expectation that Congress can’t override a veto is based on the idea that most Republicans will stand by Trump’s seizure of power. But if they hear from enough voters, they won’t.

7. Once again, conservatives in Congress and in the courts  will face a challenge: Will they support Trump, even at the expense of what was once considered a core conservative principle? Over the last several decades, much hot air has been blown about defending “the Constitution” and “the vision of the Founding Fathers”. It goes virtually without saying that neither the Constitution nor the Founders ever envisioned or endorsed a process like this: Congress refuses to fund a presidential project, the president seizes the money, both houses vote to condemn that seizure, but it goes through anyway.

Any congressional Republican who refuses to override Trump’s emergency declaration or his subsequent veto can never again claim to be a defender of the Constitution, and should never again be allowed to invoke the Founding Fathers without hearing about this betrayal of their vision. Any judge who allows this travesty to play out can likewise never in good conscience claim to be an “originalist” or “strict constructionist” rather than a partisan judicial activist.

8. There are hardly any core conservative principles left. Republican respect for the Constitution has been suspect at least since Mitch McConnell ignored President Obama’s nomination of Merrick Garland. The GOP’s claim on the Constitution further eroded when the Party decided to ignore the Emoluments Clause and let Trump profit from what are essentially bribes by foreign governments and the governments of the states. But it’s also worth considering the other conservative principles that have already fallen since Trump became the Republican Party’s nominee.

Republicans once claimed to care about the federal deficit, but they have allowed Trump to blow up the federal balance sheet in a completely unprecedented fashion. The record Bush/Obama deficit of FY2009 was a response to an economic catastrophe, but Trump’s deficits are approaching those levels in the late stages of an economic expansion, when the federal budget should be in its best shape. (President Clinton had a surplus during a comparable period.) The next recession, which is due to hit soon, will send deficits into territory never before seen.

Republicans once championed a global system of free trade, but now they stand for tariffs, presidential bullying of American corporations, and one-on-one negotiations with each country.

Republicans once were the advocates for rural America, but now Republican trade policies hit farmers harder than anyone.

Republicans claim their opposition to undocumented immigration stems from a belief in the rule of law, but they support Trump in violating our laws by refusing to let refugees turn themselves in at the border and ask for asylum.

Republicans once claimed to be the party of patriotism and freedom, and promoted Ronald Reagan’s vision of America as a “shining city on a hill”. Now they stand behind a president who is totally subservient to a Russian dictator, who shows no respect to the world’s other democracies, and instead expresses admiration and envy for brutal autocrats like China’s Xi, North Korea’s Kim, and the Philippines’ Duterte.

Republicans once styled themselves as the party of traditional family values, and (particularly during the Clinton administration) talked endlessly about the importance of a president’s character. Now they make excuses for Trump’s infidelity, corruption, sexual assaults, and shameless lying.

What ground is left for Republicans to stand on, other than bigotry against Hispanics, making the rich richer, and a naked desire to wield power?

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  • johndrue  On February 18, 2019 at 9:48 am

    What about Clinton v. City of New York, 524 U.S. 417 (1998)? Here’s the summary from Wikipedia:

    Clinton v. City of New York, 524 U.S. 417 (1998), is a legal case in which the Supreme Court of the United States ruled that the line-item veto as granted in the Line Item Veto Act of 1996 violated the Presentment Clause of the United States Constitution because it impermissibly gave the President of the United States the power to unilaterally amend or repeal parts of statutes that had been duly passed by the United States Congress. The decision of the Court, in a six-to-three majority, was delivered by Justice John Paul Stevens.

    How are the facts of this case materially different? In Clinton, Congress delegated its spending authority to the president to permit cancellation of particular expenditures. SCOTUS ruled this an unconstitutional delegation of Congressional spending authority, holding that “the procedures authorized by the Line Item Veto Act are not authorized by the Constitution.” No less could be said about the various statutes creating procedures for national emergencies. To the extent that such provisions may be based on the inherent power of the executive to deal with truly “emergent” situations, i.e., where Congress has no time to act, those facts are clearly not presented here, where the President himself has admitted in a press conference that there is really no emergency.

    John Rue
    “If it isn’t fun, why do it?”

    * Ben & Jerry

    • weeklysift  On February 18, 2019 at 12:22 pm

      Of Vox’ 11 experts, only Ciara Torres-Spelliscy of Stetson University mentions the case, but she reads it the way you do.

  • Joshua  On February 18, 2019 at 10:20 am

    After a long time reading (I think i caught the “Tea Party” bug, but I back read a lot as well) I finally have one contribution thats a question I take seriously:

    Is there a process for the dissolution of a dangerous party other than popularity? I don’t think so, because of the likelihood of an actual slippery slope – it’s a quick descent from “no pro-dictatorial parties” to “no parties but this one”). But, I’m curious if anyone knows how political parties come to an end other than just waiting them out.

    • weeklysift  On February 18, 2019 at 12:02 pm

      I think you’ve thought it through correctly: The power to disband a party is too dangerous for anybody to wield.

    • SamuraiArtGuy  On February 18, 2019 at 7:53 pm

      Historically, parties have self-destructed or dissipated before any external authority could disband them. They can be voted into irrevance, or they evolove into something else, like the GOP is morphing well past its founding principles. They may have the same name, but it is certainly not my party I recall from my youth. (That would be the 60s and 70s, I’m headed into my curmudgeon years)

      Put differently we certainly dont see any Whigs wandering the halls of Congress any more. Parties DO die, and typically of self inflicted wounds. After the the debacles of the previous two election cycles, there was talk of the Democrats being in he weeds for decades, and effctive single party rule. Perhaps they might fracture, flame out and vanish. They have managed a resurgance this last go-around, which likely has more to do with GOP awfulness than any particular appeal of the party. It’s worth bearing in mind that the more appealing Democratic candidates- now among serving Congresspeople- have tended to buck the Party establishment, which is actually more attached to status qou policies and might actually be more genuinely conservative than most Republicans. But none the less the entire party is pilloried by the Right as Socialists, with the same sneering disdain reserved for Communists in the 50s and 60s.

      Yeah, I’m old enough to remember stuff…. My dad quit the Communist party when Stalin condemmed Jazz as “decadent bourgeois American culture”.

      But make no mistake, through shrillness and overreach, the Democratic party is still fully capble of enough enforced errors to shove defeat down the throat of potential victory… again. They still have to bring a message to the broad swath of Americans who feel kicked to the curb by BOTH parties for three decades. “We suck less than those a**holles” is not *enough* to get people off their couches on election day.

  • Jeff R.  On February 18, 2019 at 10:48 am

    Doug, I think you upstaged yourself with Section 8. “There are hardly any core conservative principles left.” This is the headline, and the “National Emergency” is the climax. This is really not about Trump or even McConnell (who seems to be either an absolute obstructionist or enabler). If the Republican Party ends up enabling this perversion of the Constitution, then there are no “principles left.” We have to wonder, then, just how many Republicans in Congress are apparently owned/compromised by the Russians and/or other interests such that they would abandon the Constitution.

    • weeklysift  On February 18, 2019 at 12:03 pm

      I considered leaving 1-7 in the weekly summary and splitting 8 off as its own article. Maybe I should have.

  • knb  On February 18, 2019 at 11:54 am

    “If you live in a state or district represented by a Republican, you need to challenge your representative to defend the Republic. The expectation that Congress can’t override a veto is based on the idea that most Republicans will stand by Trump’s seizure of power. But if they hear from enough voters, they won’t.”

    And if you don’t live in a state or district represented by a Republican: Adopt one

    These are the states that have at least one Republican senator:
    AK, AL, AR, AZ, CO, FL, GA, IA, ID, IN, KS, KY, LA, ME, MO, MS, MT, NC, ND, NE, OH, OK, PA, SC, SD, TN, TX, UT, WI, WV, WY

    Senators generally care much more about the opinions of people who live in their states than they do about the opinions of those who don’t. So if you live in one of those states, make as much noise as possible, and put as much pressure as possible on your Republican Senator(s).

    If you don’t live in one of those states, adopt one. Every state, even the reddest of the red states, has a Democratic party. Look them up, follow what they are doing to pressure their Senator(s), and do whatever you can to support them. Follow their lead, because they’ll know the dynamics of the state better than you do, but do whatever you can to support them.

    The same basic idea applies for adopting a congressional district. Even the bluest of the blue states has at least one congressional district represented by a Republican. Find out what people in the district are doing to pressure their Representative, and do whatever you can to support them.


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