For those whose principal concern is preventing government shutdowns, Donald Trump’s emergency declaration probably doesn’t look like bad news. As of a couple of months ago, the president’s position was that Congress had to approve funding for his border wall – and if lawmakers balked, he’d end federal operations until his demands were met.
The emergency declaration, to an unsettling degree, is acting as a pressure valve. Trump gets to pursue his absurd goal; the governments gets to function; and the whole mess will eventually be resolved in the courts.
But for those whose principal concern is the rule of law, avoiding another shutdown comes at a high price. James Hohmann had a good piece along these lines this morning.
“White House lawyers have told Trump he could reprogram money without calling an emergency,” Fred Barbash, Ellen Nakashima and Josh Dawsey report. “But Trump … has been determined to declare an emergency, partially for fear of looking weak.”
This is just the latest, and possibly starkest, illustration of Trump’s disdain for the rule of law, as well as the premium he places on political expediency over constitutional norms and legal guardrails.
In the abstract, there’s nothing wrong with a president starting with a specific goal and working backwards to determine how best to get there. The trouble arises when someone tells the president, “That may not be legal,” and the person legally required to protect and defend the Constitution replies, “I don’t care.”
William Banks, a Syracuse University law professor, told the New York Times, “This is a real institutional threat to the separation of powers to use emergency powers to enable the president to bypass Congress to build a wall on his own initiative that our elected representatives have chosen not to fund.”
Banks added, “It sets a precedent that a president can, without regard to an actual existence of an emergency, use this tool to evade the normal democratic process and fund projects on his own.”
There’s a school of thought, which I’m generally sympathetic toward, which says there are two kinds of constitutional crises. The first arises when officials turn to the law for answers, but the law is silent. When Woodrow Wilson had a stroke, for example, and he physically couldn’t fulfill his duties, officials looked to the Constitution. The 25th Amendment didn’t yet exist, so the result was a sort of crisis: the law offered no guidance on how the government was supposed to function.
The second is when the Constitution establishes a legal framework, but those in positions of authority chose to operate outside those boundaries.
Does Trump’s gambit, asserting powers he’s not supposed to have, in pursuit of a project the people and their elected lawmakers do not want, fall into that latter category? There are scholars who can speak to this with more authority than I can, but this Vox piece struck me as notable:
The Constitution gives Congress, not the president, the ultimate power to appropriate money. The president legally has the power to declare emergencies and respond, but can he do that in a situation where Congress has explicitly declined to fund the president’s wall?
According to Elizabeth Goitein, an expert on national security law, the answer is that he can’t – and Trump’s attempt to do so constitutes a “constitutional crisis.”
Goitein is the co-director of the Liberty and National Security Program at the Brennan Center for Justice, a nonpartisan but liberal-leaning legal nonprofit. Her research focuses on balancing national security and constitutional rights, which makes her pretty well-positioned to evaluate the president’s claim. In a series of tweets, she made the case that declaring an emergency on the border constitutes a power grab that directly threatens the constitutional order.
Last night, I spent a little time poking through my archives, looking up instances in which I wrote about Donald Trump being at odds with the rule of law. It was exhausting, not just viscerally, but also practically, because these stories have been ridiculously common.
Indeed, I found a quote from Sally Yates, who served as acting attorney general before Trump fired her in 2017 for giving the White House good advice, who described one of the president’s efforts last year as “nothing short of an all-out assault on the rule of law.”
The depressing part is, you don’t know which Trump effort Yates was referring to, and if I hadn’t read the report, I wouldn’t either. There have been so many all-out assaults on the rule of law since Trump’s inauguration that it starts to look like one long crisis.
That said, today’s gambit seems qualitatively different. Civics 101 offers clear definitions of what the co-equal branches of government do, and Trump’s declaration seems designed to shuffle the deck in ways that undermine the institutions themselves.
I don’t honestly believe that this president wants to tear down the rule of law, because that would suggest he’s invested energy into answering the underlying question. That seems wholly implausible. It’s Trump’s indifference to the rule of law that’s the problem.
He doesn’t see constitutional frameworks as his enemy because he doesn’t see them at all. Today’s crisis, alas, was probably inevitable.