HORIST: The declaration of a national emergency is a problem for Constitutionalists
Whether it was due to out-of-sight crumbling of support from Senate Republicans or miscalculation on the part of President Trump, the effort to fund the wall came suffered a serious setback with the bipartisan agreement coming out of Congress – even though it had to be with Trump’s okay.
One of the major unanswered questions is why Trump ended the government shutdown after 35 days by signing the two-week funding bill. The tide of public opinion and the resolve of several congressional Democrats was shifting. The President was in the power position as long as he stayed the course AND if he could trust Senate Republicans to stave off a veto override. Eventually, the Democrats would have had to cave. It was virtually pre-ordained.
One explanation may be that Trump was privately told that a sufficient number of Senate Republicans would cross over and support a veto override. That seems unlikely but appears to be the only rational explanation for Trump caving when he did.
He could have held to his $5.7 billion demand and let the Democrats cause a second shutdown – but sequels rarely do as well as the first-run version. He could have held to his $5.7 billion and let negotiators accept it or fail to reach an agreement – and lay the blame on the second shutdown on the obstinance of Speaker Nancy Pelosi. She was already looking more and more like the problem.
Senate Majority Leader Mitch McConnell said nothing would be agreed to unless it would be signed by the President. That means that the bipartisan agreement had to have the tacit support of Trump — even if he now claims he does not like it. He could have stopped it. Why that did not happen is a mystery, but it may again have to do with the knowledge that his veto would not be supported in the Senate.
Division within the Republican Party is not something new. It is as common as that political solidarity that reigns supreme in the Democratic Party. It is the reason why even when the GOP held the Senate, the House and the presidency, they got blocked by the unbroken ranks of Democrat opposition – especially in the Senate, where Democrats retained the power to block super-majority votes and engage in filibusters. Now that Democrats have the House, their power is enhanced exponentially.
In terms of leading a unified government for two years, the Republicans were … well … pathetic. They were tossed around by the Democrats and the incredibly biased media like rag dolls. They allowed the unprecedented – and dangerous to the Republic – resistance movement to roll over them like a tsunami. While they had the better policies, Republicans lost on healthcare. They lost on selling the benefits of the tax cut. They lost on dealing with the Russian investigation. They lost on most foreign policy initiatives. And consequently, they lost BIG in the midterm election. There is hardly a single issue that Trump and the Republicans have advanced that has the support of most of the people.
And now cometh the declaration of a national emergency to gain money for physical barriers along our southern border – the proverbial wall. It is a desperation move that should have been avoided. Yes, there is a crisis on the border. Just because the number of those arrested at the border has decreased, does not mean 700,000 unvetted new migrants entering America each year is acceptable – and not a crisis. The Democrats argument that there are few illegal crossings now than ten years ago is irrelevant. There are far too many today. The fact that most illegal drugs enter through ports of entry is also irrelevant. Too much still comes across unprotected portions of our open border.
The reason the emergency declaration is not the best solution is that it well may be unconstitutional. The Supreme Court said as much when President Truman tried to nationalize the steel industry during the Korean War – and on other occasions where the justices stepped in. Presidents attempting to expand their executive powers is nothing new, but it should be resisted in favor of that all-important separation of powers. A president’s propensity to appropriate money – and even declare war – has already been abused too often. It needs to be reined in.
But here is the rub.
Congress gave presidents the power to declare national emergencies for damn near anything. We are currently living under 31 national emergencies declared by presidents as far back as Jimmy Carter. In fact, in 2011 President Obama issued one to address the inflow of illegal drugs – and Trump may use that one in addition to the new one to secure border barrier funding.
The question that may have to be decided by the Supreme Court is whether the Trump declaration is unconstitutional OR … is the 1970 law that gave such authority to a president unconstitutional. That would not only limit a president’s ability to declare national emergencies in the future, but make all those in the past null and void. While Democrats may challenge only Trumps declaration, it is not impossible to imagine that some libertarian group may challenge the entire law.
It would seem that under the law, Trump is on solid ground in his authority to declare a national emergency. So, the only way to stop him may be to have the law that empowers him declared unconstitutional.
President Obama was correct when he said that he did not have the power and authority to issue an Executive Order to defend the DACA Dreamers from deportation – that was before he did just that. That order is still in question in the federal courts. Trump, who said he favors keeping the Dreamers in the country, said that he did not have the power and authority to extend Obama’s improper EO – and he was correct. It is the job of Congress … period.
Trump’s declaration of national emergency resolves nothing at this moment. It will prolong a national debate that neither side can fully win. The process will take time. Even with the declaration, not one inch of a southern border barrier – other than that authorized in the current bill – is likely to be constructed before the 2020 election. It will suck the political oxygen out of the room for any of the more significant accomplishments of the Trump administration.
The debate over whether there is a crisis, an emergency or even a problem at the border will rage on despite the fact that both sides are pretty much locked into their position on that question. We will be subjected to a prolonged debate with no more meaning that arguing over the number of angels on the head of a pin.
Trump did not help himself by caving during these negotiations, but the harm to his re-election will be worse if the only two stories in the public sphere are border walls and investigations. He needs to re-focus public attention on more positive and more important issues.
This does not mean he should abandon immigration reform as one of those important issues. The Democrats are painted in a corner on immigration – on DACA, on chain migration, on birth-right citizenship and on catch-and-release. Those are important issues to be debated and resolved – and Trump did a pretty good job of foretelling that debate in the future. They are issues in which Trump and the GOP can take the high ground – as the wall issue weaves its way through the courts and Congress.
The stand-off between Trump and the Congress cannot be settled by unilateral action on the part of the President. It will be challenged in several federal district court cases and any declaration could be terminated by a vote of Congress. It is certain to pass the House, but its future in the Senate again depends on a hand full of Republicans. IF – and that is a big IF – there were enough GOP senators to override a veto then a vote to block Trump’s declaration is possible. If there were not, then the declaration will stand.
Under the law, Trump clearly has the power to declare a national emergency for any reason he, as President, deems appropriate. If the law is not struck down, it is unlikely that the declaration will be.
My more libertarian side has me thinking that Trump’s declaration should go forward unless the High Court strikes down the enabling law. For those of us who recognize the problem of our open borders and yet value the importance of the Constitution, it is not a happy choice – especially when you are confronting a partisan political movement that does not give a rat’s ass about the Constitution.
So, there ‘tis