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.