If we have reached the point where the only solution is to allow the President to declare an illegal and unconstitutional action in order to reopen the government, then we n€d to reconsider how ours is a government of laws, not men, and what our observance of the Constitution actually means.CNN: If the president can declare a national emergency to build a border wall, couldn't a Democrat do the same to address climate change?@RepMoBrooks: ... ... ... pic.twitter.com/xZbRNLjLAi— Aaron Rupar (@atrupar) January 11, 2019
If Trump asserts the authority he doesn't have, things happen even if nothing really happens. He may direct actions to take place in 45 days, but such an order would require government employees to violate the Anti-Deficiency Act, an Act that requires the agency head to report each and every violation. Failure to so report is itself a violation. In other words, a very large number of people would have to be willing to violate the law in order to carry out what Trump imagines would be his imperious command.
And this is the scenario Congress is now counting on? Reports are the Administration is counting on the courts to stop it, so it can declare a pyrrhic victory and return to "normal" function. Is this any way to run a railroad? Is this the way we govern now?
If you get past the restrictions and entanglements of the Anti-Deficiency Act, Trump then orders the DOD to build his wall. But the military can't, as a matter of law, construct anything not related to military need. So now the DOD, up and down the ranks, has to defy the Commander-in-Chief. And this is a good way to resolve this impasse?
Dahlia Lithwick thinks, somewhat simplistically, that the fact Trump didn't announce a national emergency from the Oval Office means the center has held. However, Sen. Lindsay Graham says the GOP must stand behind Trump no matter what, or the GOP is ended as a political party. So, for the sake of GOP primary voters, we have to toss the rule of law in the shredder and hope for the best, an outcome that Vox realizes means: be careful what you wish for, because you may NOT get it. And even if you do, governance by someone else telling you "No, you can't do that!," is not governance at all. It is the complete failure of governance.
Trump's assertion of unlawful authority won't just be a matter for lawyers in a courtroom. It will be an illegal act involving possibly hundreds of government employees. This won't be the Saturday Night Massacre. This will make that look like a friendly disagreement. Declaring a national emergency to order the building of a border wall entirely on Presidential fiat will be, in fact, unprecedented. It will be a true Constitutional crisis. It will require more than just White House staffers to "lawyer up".
Will the courts save us from ourselves? When, and at what price? Even if they do, what is the precedent? A President can declare a national emergency at whim? Direct the military to do as he pleases, especially to appease his political supporters? Erase the balance of power because he is the POTUS, and you're not? And our only recourse is the courts which may, or may not, at some time years later, say "Stop!"? And Trump is considering raiding allocated but unspent disaster funds (for relief in Texas, California, and Puerto Rico, not just a slush fund waiting for the next raindrop); if those are the subject of a court challenge, they will be frozen until the challenges are resolved. So this is the way to end a crisis caused by lack of legal authority to spend government monies?
The only upside is, it may end this ridiculous practice of how we budget the federal government. Helluva price to pay.
BTW, Jim Acosta's got your "border emergency" right here:
Last video of the day. Found a beautiful spot on the Rio Grande where there is no wall. No fence. Just the river. Oh and there’s shuffleboard. pic.twitter.com/AGJioY7Bge— Jim Acosta (@Acosta) January 11, 2019
I feel like a broken record (I am old enough to remember when records would skip and keep playing the same thing over and over), but in the end the people running the government need to be acting in generally good faith. There is no magic in the Constitution, the federal laws and regulations or anywhere else that is self executing and works without human good faith action. If congress allocates money and the administration refuses to spend it, there is little to force them to spend. If the Senate is to advise and consent on a supreme court nominee, and it refuses to hold a hearing, there is nothing to force it to happen. Government only works because most of the people running it agree to follow the rules, sometimes enthusiastically, sometimes grudgingly, but at least acting. No court can effectively force it to act but in the most broad manner.
ReplyDeleteWe now have an administration that often acts in bad faith, and it flirting with acting in far worse bad faith. If Trump declares a national emergency, we have a constitutional crisis and eventually realize who weak the constitution is when the actors operate in bad faith. SCOTUS is getting packed with bad faith actors, so what little power it contains won't be exercised and it will be exposed as even more weak.
I have little faith our press will in anyway explain this to the public. Already we are deep into both-sider-ism (thanks AP News!). When major media allocates blame to both sides, and flirts with the idea of declaring an emergency as a "solution" (thanks NYT!) to be contemplated, they expose how hollow freedom of the press can be to expose corruption and power.
I am tired and it has been a horrible week at work (tenure lets people behave in ways that would have gotten them fired anywhere else long before this point) and at in my personal life (a life long friend's terminal cancer took a hard turn for the worse). I know this is making me much more cynical, but I see little hopefulness in this crisis.
Norms, good faith, accountability, all in short supply.