Copyright © 2019 by Mark Gabrish Conlan for Zenger’s
Newsmagazine • All rights reserved
Allow the President to invade a
neighboring nation, whenever he shall deem it necessary to repel an invasion,
and you allow him to do so, whenever he may choose to say he deems it necessary
for such purpose — and you allow him to make war at pleasure. Study to see if
you can fix any limit to his
power in this respect, after you have given him so much as you propose. If,
today, he should choose to say he thinks it necessary to invade Canada, to
prevent the British from invading us, how could you stop him? You may say to
him, “I see no probability of the British invading us” but he will say to you
“Be silent; I see it, if you don’t.”
The provision of the
Constitution giving the war-making power to Congress, was dictated, as I
understand it, by the following reasons. Kings had always been involving and
impoverishing their people in wars, pretending generally, if not always, that the
good of the people was the object. This, our Convention understood to be the
most oppressive of all Kingly oppressions; and they resolved to so frame the
Constitution that no one man should hold the power of bringing this oppression
upon us. But your view destroys the whole matter, and places our President
where kings have always stood.
— Abraham Lincoln,
letter to William Herndon, February 15, 1848
The salient
characteristic of Donald Trump throughout his entire life has been his uncanny
ability to snatch victory from the jaws of defeat. He did it in 1991, when he
was about to lose his Atlantic City casinos in a spectacular bankruptcy filing
when his creditors decided to bail him out, on the ground that the casinos
would be worth more with Trump’s name on them than without it. He did it again
in 2003, when according to New Yorker
profiler Patrick Raddon Keefe (https://www.newyorker.com/magazine/2019/01/07/how-mark-burnett-resurrected-donald-trump-as-an-icon-of-american-success)
Trump “had become a garish figure of local interest —
a punch line on Page Six.” Trump hooked up with TV producer Mark Burnett and
starred on The Apprentice, a “reality” competition which ran for 12 seasons and
convinced much of America that Trump was the most brilliant and most successful
capitalist who had ever lived.
Trump did it again and again in his 17-month Presidential
campaign, where gaffes that would have finished a less mythic figure — from
denouncing Mexican immigrants en masse
as murderers, rapists and criminals to insulting war hero John McCain,
ridiculing a disabled reporter, calling on Russia to hack his principal
opponent’s e-mails, being exposed as someone who not only forced himself on
women but bragged about it, and saying he could shoot someone in cold blood in
broad daylight on New York’s Fifth Avenue and it wouldn’t budge his poll
numbers — just added to Trump’s raw, nervy, punk-like appeal.
And he’s done it again and again in his Presidency as well,
where despite a paucity of actual achievement — the only bill he’s successfully
pushed through Congress is a massive tax cut for the rich, and given that
making the distribution of wealth and income more unequal is boilerplate Republican ideology that was a
slam-dunk with the GOP in both houses of Congress — millions of Americans
remain convinced that he is a God-inspired figure saving America from
foreigners, women, people of color, Queers, socialists and environmentalist
zealots who want to put the auto, steel and coal industries out of business.
So rule number one of the Trump years in American history
is: Don’t Bet Against Donald Trump.
He seemed to suffer a huge defeat last November, when American voters by a
9-percent margin decided to put control of the House of Representatives in the
hands of the Democratic Party. Instead of trying to conciliate with the
opposing party, as Bill Clinton, George W. Bush and Barack Obama had in similar
circumstances, Trump doubled down on his agenda, demanding $5.7 billion for a
wall across the U.S-Mexico border and shutting down the government for 35 days
from December through February when he didn’t get his way.
Trump’s standing in the polls nosedived during the
shutdown, which kept going as long as it did only because Senate majority
leader Mitch McConnell refused to allow any bill to reopen the government to
come to a vote unless Trump swore a blood oath he would sign it. The result was
a face-saving “compromise” that reopened the government, but only for three
weeks, and Trump said he was fully prepared to shut down the government again
if the conference committee negotiating the budget for the Department of
Homeland Security didn’t put in at least $5.7 billion for the wall. When the
committee reported out a bill with even less money for border barriers than the
one Trump had rejected in December, it looked like Trump would have to go
ungently in that good night, admit defeat, lick his wounds and carry on.
But ol’ rope-a-dope Trump had another trick up his sleeve:
a “declaration of national emergency” through which he could divert money
Congress had allocated for other things and use it to build his wall. He’d
started mulling over the possibility of an “emergency” declaration almost as
soon as the Democrats actually took control of the House on January 3. Though
more sober, fact-constrained observers questioned whether there’s really an
“emergency” situation on the U.S.-Mexico border that calls for drastic
unilateral action by the President, Trump argued that the “caravans” of
would-be asylum seekers from central America were cover for drug smugglers,
human traffickers and hardened criminals, and if we didn’t do something drastic
to stop them — like building a wall — we’d all be murdered in our beds.
When the conference committee report was ready to be voted
on by the Democratic House and the Republican Senate, Mitch McConnell all but
endorsed the “national emergency” declaration on the Senate floor. He thereby
gave Republican Senators the political cover and quasi-official permission they
needed to vote for the bill to keep the government open: “Don’t worry that
there’s only enough money to build 57 miles of wall. Ol’ Massa Trump will just
declare a ‘state of emergency’ and spend whatever he wants to on it.”
Can He Do
It? Yes, He Can!
Trump’s announcement that he was declaring a “national
emergency” came on February 15, in a bizarre press conference in the White
House Rose Garden. After jumping around from topic to topic he delivered a
curious sing-song chant — reminiscent of the line in Warren Beatty’s film Bulworth in which the Beatty character delivers a lame recitation
in rhythm and one of the Black characters comments, “I guess that’s how white
people rap” — in which he predicted that his action would be challenged in
court, he’d lose in the 9th Circuit (a long-time bête noire of Right-wing activists because it’s housed in San
Francisco, it’s generally the most liberal of the federal court circuits and
it’s frequently been overruled by the Right-wing majority of the U.S. Supreme
Court) but he’d “get a fair shake” with the Supremes.
What isn’t generally realized is that “national emergency”
declarations by Presidents of the United States are nothing new. In fact,
they’re routine. In her December 8, 2017 Lawfare article, “Emergencies Without
End” (https://www.lawfareblog.com/emergencies-without-end-primer-federal-states-emergency),
Catherine Padhi noted that at the time she wrote there were 28 national states
of emergency. Today, according to Los Angeles Times columnist Jonah Goldberg (https://www.lawfareblog.com/emergencies-without-end-primer-federal-states-emergency),
there are 31.
What’s more, most presidential declarations of national
emergencies aren’t particularly controversial. As Trump said in his Rose Garden
remarks, “There’s rarely been a problem. They sign it; nobody cares. I
guess they weren’t very exciting. But nobody cares.” New Yorker columnist Amy Davidson Sorkin noted that most of the
presidential emergency declarations “involved measures, such as dealing with
foreign sanctions, that Congress simply hadn’t acted on.” Rarely, if ever, has
a President acted the way Trump has — first lobbying Congress to give him money
to do something, and then boldly running roughshod over Congress’s authority
and spending the money anyway.
Indeed,
California Attorney General Xavier Becerra, who just filed his 46th
lawsuit against Trump in his two years in office over the emergency
declaration, emphasized that point when he announced the lawsuit publicly. The
suit, filed by California in coalition with 15 other states (Colorado,
Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota,
Nevada, New Jersey, New Mexico, New York, Oregon, and Virginia), says,
“Contrary to the will of Congress, the President has used the pretext of a
manufactured ‘crisis’ of unlawful immigration to declare a national emergency.
… Congress has repeatedly rebuffed the President’s insistence to fund a border
wall. … Use of those additional federal funds for the construction of a border
wall is contrary to Congress’s intent. … The thwarting of congressional intent
to fund a vanity project … cries out for judicial intervention.”
But it’s not so
clear that Trump doesn’t have the authority to issue his emergency declaration
and move money around the federal budget to build his wall. Law professor
Jonathan Turley, generally considered a liberal, published an article on the
Web site The Hill on January 2 (https://thehill.com/opinion/judiciary/424314-yes-trump-has-authority-to-declare-national-emergency-for-border-wall)
saying basically that Trump has the
power to declare the emergency and get the wall built because Congress has
given him — and all previous presidents since 1976 — the power to do so.
Turley argued
that Democratic Congressmembers like House Intelligence Committee chair Adam
Schiff (D-California) were relying on the 1952 U.S. Supreme Court decision Youngstown
Sheet and Tube Co. v. Sawyer, in which President Harry Truman declared a
“national emergency” and seized control of the U.S. steel mills to make sure
the U.S. military got continued supplies it needed to fight the Korean War. The
Court ruled this unconstitutional, but according to Turley, 24 years later
Congress voluntarily gave up its power to block such presidential declarations.
As Turley wrote:
More than two decades later, Congress expressly gave presidents
the authority to declare such emergencies and act unilaterally. The 1976
National Emergencies Act gives presidents sweeping authority as well as
allowance in federal regulations to declare an “immigration emergency” to deal
with an “influx of aliens which either is of such magnitude or exhibits such
other characteristics that effective administration of the immigration laws of
the United States is beyond the existing capabilities” of immigration
authorities “in the affected area or areas.” The basis for such an invocation
generally includes the “likelihood of continued growth in the magnitude of the
influx,” rising criminal activity, as well as high “demands on law enforcement
agencies” and “other circumstances.”
Catherine
Padhi’s Lawfare article puts Turley’s argument in context. She notes that,
despite Truman’s loss in court on the steel seizure in 1952, the 1950 national
emergency declaration he had issued to fight the Korean War was otherwise still
in effect in 1972 — and still being used, this time to fight the war in Viet
Nam. “By 1973, Congress had enacted over 470 statutes granting the president special powers in
times of crisis,” Padhi wrote. “These powers would lay dormant until the
president declared a state of emergency, at which point all would become
available for his use. And at the time, the president could declare an
emergency as he alone saw fit: no procedures or rules constrained his
discretion.”
According to Padhi, the 1976 National Emergencies Act was
actually designed to limit the
Presidential power to declare emergencies unilaterally. “First,” Padhi
explained, “the act revoked (two years after its enactment) any powers granted to the
president under the four states of emergency still active at the time. Next, it
prescribed procedures for invoking these powers in the future. No longer can a
president give force to the hundreds of emergency provisions by mere
proclamation. Instead, he must specifically declare a national emergency in accordance with the act and identify the statutory basis for each emergency power he intends to
use. Each state of emergency is to end automatically one year after its declaration, unless the president
publishes a notice of renewal in the Federal Register within 90 days of the termination date and notifies
Congress of the renewal. Finally, the act requires that each house of Congress meet every six months to
consider a vote to end the state of emergency.”
But the act’s limits on presidential power have never been
used, Padhi said. What’s more, in 1983 the U.S. Supreme Court ruled part of the
act unconstitutional. The way the law was originally written, either house of
Congress could vote to overrule the emergency declaration, and if both houses
passed resolutions by majority vote to end a state of emergency, it would end.
The Court found that an unconstitutional limit on Presidential authority and
said that resolutions to end a Presidential state of emergency had to be
treated like any other piece of legislation: the President could either sign or
veto it, and it would take two-thirds votes in both houses to override a veto.
Hypocrisy on
Both Sides
Not only is it virtually inconceivable that Trump’s
“national emergency” declaration on the border could be overruled by Congress,
it’s highly unlikely that it would get even a majority vote in the U.S. Senate.
Though it’s likely to sail through the Democrat-controlled House, and according
to the 1976 Act Senate leader Mitch McConnell would have to let the Senate vote on it — he can’t just refuse to
schedule it the way he’s done with any pesky piece of legislation he wanted to
make sure didn’t get Senate approval — it’s virtually certain that the Senate,
with 53 Republicans and 47 Democrats, will vote more or less along party lines
to sustain Trump’s action.
The entire history of the Trump administration has seen,
over and over again, a pattern of Republican Senators and House members
privately telling their Democratic colleagues about their misgivings on one or
more of Trump’s proposals, sometimes even making veiled public statements
containing mild criticisms of Trump. As Amy Davidson Sorkin noted in her New
Yorker piece, “Before Trump made
his declaration, various
Republican senators, including Mitch McConnell, the Majority Leader,
Susan Collins, of Maine, and Ted Cruz, of Texas, said that they hoped he
wouldn’t do so, or at least that they had concerns about his doing so.
“But, just
before the Senate voted on the budget deal, McConnell announced that he would
go along with such a declaration,” Davidson Sorkin added. With only a handful
of exceptions — notably the late John McCain casting a dramatic deciding vote against
the “skinny repeal” of the Affordable Care Act, a.k.a. “Obamacare” — the
Republicans in both houses of Congress have voted in lock-step with Trump on
everything he’s wanted them to do. Indeed, as I argued above, the budget deal
might not have passed at all if McConnell hadn’t stood up on the Senate floor
and all but promised Senate Republicans that Trump would declare the emergency and build the wall anyway, so
they wouldn’t have to fear angry Trump supporters and possible Right-wing
primary challengers saying they “really” weren’t for the wall.
Nor is the
challenge to the emergency declaration likely to prevail in the courts, either.
As Trump noted in the Rose Garden, the court cases are likely to go the way
they did on the Muslim travel ban and the ban on Transgender troops in the U.S.
military. Lower court after lower court issued decision after decision
rejecting these executive orders expressing Trump’s hatred and bigotry — but
the Supreme Court, solidly “packed” with a virtually unshakable 5-4 Right-wing
majority (courtesy of Mitch McConnell, who wouldn’t allow Obama’s last Court
nominee to be voted on and made sure the vacancy left open by the death of
Justice Antonin Scalia would be filled by Trump), will give Trump what he
wants.
Make all the abstract
arguments you want about overreaches of Presidential power: they won’t matter a
damned bit. Indeed, one feature of our highly polarized politics is the degree
to which both major parties have adopted
an almost reflexive, automatic hypocrisy. If a Democrat is in the White House,
especially if he faces a Republican Congress, the Democrats will be arguing for
an expansive view of Presidential power and the Republicans will say that a
runaway “Imperial Presidency” threatens the basic system of checks and balances
established by the Constitution. Once the President is a Republican and
Democrats control one or both houses of Congress, both parties shift sides as
easily and routinely as football teams switch their direction of play at the
end of a quarter.
The kind of
intellectual honesty shown by Jonathan Turley on the Left and Jonah Goldberg on
the Right (https://www.latimes.com/opinion/op-ed/la-oe-goldberg-trump-national-emergency-border-wall-20190215-story.html)
is all too rare among American politicians and political commentators today. In
a column published in the February 19 Los Angeles Times, Goldberg called Trump’s emergency declaration “an
act of weakness, not strength,” and added, “When Barack Obama used his pen to
give ‘Dreamers’ [undocumented immigrants brought to the U.S. as children] a
reprieve from prosecution, it was an act of weakness, too.”
Goldberg might
have been better off using the word “laziness” than “weakness,” because his
argument is that genuinely strong Presidents govern by persuading Congress to
vote for their proposals, not ignoring Congress and enacting them by
proclamation. “Powerful presidents enact their agendas through Congress, not
executive orders,” Goldberg wrote. “It’s why they usually manage to get their
big-ticket items passed shortly after an election, when they can declare a
mandate. Executive orders aren’t as lasting, because they can be overruled by
Congress and future presidents.”
So we can expect
Trump’s executive order declaring a “national emergency” on immigration to sail
through the U.S. Senate and the Supreme Court because the Republicans who
control both those institutions will uphold them on a party-line vote. Indeed,
our only real hope for blocking the “national emergency” is if the people suing
to overrule it can keep the cases going in the lower courts for the next two
years — and then hope that the American people have the good sense and common
decency to vote Trump out of office in 2020, so when the Supreme Court finally
issues its decree legitimizing Trump’s “national emergency,” he’ll be out of
office (or shortly on its way out), the incoming Democratic President will
rescind it, and the issue will be moot.
