There is a national emergency, but it’s not coming from caravans massing in Mexico. It’s from an authoritarian flailing in Washington. The crisis that the country is now confronting has less to do with a porous physical boundary than with how the limits of presidential power are eroding before our eyes.
President Donald Trump has ended weeks of flirting with the use of emergency powers to build his border wall and is taking the plunge. But one can only ruminate on an “emergency” for months before a solution is proffered that will take a decade to implement when the emergency is flimflam – a tissue of an excuse to assume ordinarily unavailable powers.
The situation on the border is hardly an emergency. Unauthorized border crossings are lower than they’ve been in almost a half-century: Barely 300,000 people were detained trying to cross in fiscal year 2017, when the border was more secure than ever, as compared with 1.6 million in FY2000. The percentage of undocumented immigrants in border states is falling. And the counties abutting the Mexican border are among the nation’s safest. There are humanitarian challenges at the border, but Trump and his inhumane policies are largely their cause rather than solution.
Tellingly Trump seems to have culled his most colorful warnings of border-related dangers from the silver screen and even admitted that his proclamation is a farce: “I didn’t need to do this, but I’d rather do it much faster,” he said in his bizarre Friday press conference. But if something isn’t even necessary, it’s definitely not an emergency.
The crisis to which Trump is actually responding relates to his own impotence: The self-styled master negotiator couldn’t persuade even quiescent Republicans to fund a wall during their congressional supremacy and then he couldn’t leverage his government shutdown to force one from a Democratic majority.
So he’s decided to cut Congress out of the policy-making process.
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Doing so will unleash legal and political firestorms. Congress will vote on a resolution to end the “emergency,” forcing Trump to veto it if passed. And it will trigger lawsuits not only from legislators upset that he’s seizing their constitutional prerogatives, but from border-area landowners unwilling to sacrifice their property on the altar of King Donald’s whims now freed, as a result of the president’ emergency order, from the restrictions of the Depression-era Declaration of Takings Act which would otherwise limit their ability to sue to stop the project.
Senate Majority Leader Mitch McConnell had warned against such a declaration before essentially agreeing to it; Republicans are already worried about the precedent a non-emergency emergency declaration sets. “I don’t believe that’s the way we should be doing these sorts of things,” said Florida GOP Sen. Marco Rubio, who had previously mused that a future Democratic president might use such a declaration about climate change to seize fossil-fuel power plants. (Indeed, House Speaker Nancy Pelosi on Thursday noted that the next Democratic president might declare gun violence a national emergency.)
But forget a future Democrat’s intentions: If Trump, long on despotic instincts and short on patience, gets away with this declaration, why wouldn’t he do it again? It’s staggering to imagine what other dead-end fancies might he resurrect as emergencies.
On the precedent question, though, it will be instructive to see how quickly the 2020 Democratic hopefuls’ condemnations of Trump’s overreach will be replaced with vows to exercise emergency powers to deal with issues such as climate change, gun violence or health care in the absence of Congressional action. But even if that doesn’t happen this election cycle, if Trump’s power-grab isn’t slapped down — hard — it’s inevitable that unfettered emergency declaration powers will become stump speech and debate staples before becoming staples of presidential legislating.
Accomplishing something in the face of partisan sclerosis does have a certain appeal in 2019. But, as Julius Caesar is credited with saying, “All bad precedents begin as justifiable measures.” (Caesar, remember, had first-hand experience with a necrotic republic.)
Our system was designed around checks, balances and the need for compromise. Power was divided among three co-equal branches of government, each able to check the power of the others. Congress makes laws — including ones dictating how the federal government raises and spends money — and the president executes them faithfully. This is basic high school civics stuff, which might explain why it seems mysterious to Trump.
His national emergency scheme threatens to upend that balance. If emergency declarations become a way for an executive to legislate, then a president unable or unwilling to reach a deal with Congress need not make the effort to engage with the constitutional requirements set forth by our Founding Fathers.
And to the extent that members of Congress go along with this — and several seem poised to join Sen. Lindsey Graham, R-S.C., in the quisling caucus — they are deliberately downgrading their branch from coequal to subordinate, and slouching toward irrelevant.
This is just the latest and arguably most dangerous instance of a trend that predates Trump but which, like everything else he touches, he’s made worse. Over recent decades the unwritten rules of politics, norms which distinguished powers that could be exercised from ones that should be, have increasingly been disregarded.
So the filibuster, once rarely used, is now the Senate standard. Acts of political terrorism – threatening deliberate harm to Americans through a government shutdown or national debt default unless otherwise unachievable demands are met – have become commonplace. Prosecutorial discretion was a matter of efficiency before President Barack Obama made it a policy tool. The Senate accepted a president’s power to fill Supreme Court vacancies during his term until, without precedent, it didn’t. McConnell’s threat to politicize the response to 2016 Russian hacking scuttled the idea of politics stopping at the shoreline. And national emergencies were heretofore used to enact noncontroversial responses to real crises rather than as a tool of expediency for politically untenable ends.
In each case, politicians maximized partisan gains with little regard for long-term consequences. It’s a political tragedy of the commons, where the desire to score points subsumes the greater good of having a functional and responsive political system. All of those examples illustrate a broader, darker picture of a political culture finding short-cuts away from the sometimes-arduous process of consensus, compromise and cooperation and instead opting for the quicker and easier — but constitutionally destructive — path of authoritarianism facilitated by obstruction.
When running for office, Donald Trump promised repeatedly that Mexico was going to pay for his wall. Instead, it turns out, that we all may pay for it – both with our taxes and with our polity.