President Donald Trump speaks at CPAC 2018.
Photo Credit: Gage Skidmore

I’m going to take a different tact on President Trump’s national emergency than Shane Vander Hart did. Shane is right that President Trump should not have declared a national emergency on the border,  for many of the reasons Shane laid out. I’ll also agree with Shane that there’s serious problems along our nation’s borders that needs addressed.  I’ll further agree that the Democrats haven’t worked in good faith with the President to address border security.

However, Shane defends Republican opposition to overturning President Trump’s national emergency declaration.  He points out National Emergencies have been declared since the Carter Administration and the House measure presented by Speaker Pelosi and the House Democrats was targeting border funding rather than addressing the underlying problem.  “The resolution that passed was a politically motivated attempt to stop border funding, not address the more significant problem which is the expanding use of executive power.”

If President Trump’s use of emergency power were of the same character as the other fifty plus national emergencies that have been declared, congressional Republicans would be right to say, “Why should this emergency be overturned, while all these others remain in effect?”

However, when we do a deep dive into these emergency declarations, we can see a common theme:

Nov. 14, 1979 (still in effect): A national emergency in response to the Iran hostage crisis, which froze Iran’s assets in the United States;

May 1, 1985: Prohibiting Trade and Certain Other Transactions Involving Nicaragua, revoked in 1990;

Oct. 4, 1991: Prohibiting Certain Transactions with Respect to Haiti, revoked in 1994;

March 15, 1995 (still in effect): Prohibiting Certain Transactions with Respect to the Development of Iranian Petroleum Resources, continued in March 2018 and expanded in August 2018;

Sept. 23, 2001 (still in effect): Blocking Property and Prohibiting Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism, continued in September 2017;

July 24, 2011 (still in effect): Blocking Property of Transnational Criminal Organizations, continued in July 2018;

Nearly all of these declarations of national emergencies are related to foreign policy, and most are economic sanctions on foreign individuals and entities. There’s also a declaration of a national emergency that was in place by President Obama regarding the N1H1 flu epidemic.  There’s a good case to be made that almost all of these emergencies are properly functions of the Executive branch as they pertain to the direct enforcement of laws and national security.

President Trump’s national emergency declaration is of an entirely different character.  He is seizing the power to appropriate funds in a way Congress explicitly refused to. No other national emergency has been an end-run on Congress after Congress refused to do what the President wanted.  As such, this is an abuse of the President’s emergency powers that violates  the constitution itself right along with the nation’s balance of power and Congress’s prerogatives. I cannot fathom the logic that President Trump seizing billions in military construction funds for a Border Wall that Congress refused to authorized is the same as Jimmy Carter freezing Iran’s assets in response to that country taking our citizens hostage. 

We also have to recognize the plain meaning of the word “emergency.” If you’ve determined the assets of the Iranian government need to be seized in order to gain leverage to get our hostages back, that’s an emergency requiring immediate action. If you pass a bill through Congress, there’ll be no Iranian money left by the time the bill makes it through the process. If you spend more than two years talking about something with Congress, and you’re not able to convince Republicans to act on it when they controlled the House, it’s not an emergency.

I also take issue with the idea this decision is somehow justified by the fact Democrats didn’t negotiate with President Trump in good faith. If we take a look at the recent past, President Obama wanted gun control legislation and he wanted amnesty for illegal aliens. Republicans in Congress refused to oblige him because they disagreed with the President and because they wished to win their primary elections. 

Right now, Congressional Democrats hold the balance of power in the House of Representatives and they disagree with President Trump. For them, giving an inch to Trump on this issue would be political suicide as they would be primaried. In addition, Congressional Democrats can claim a mandate for not working with this president on this issue. The President ran in the final days of the campaign on the idea that thousands of illegal aliens were storming the border and had to be stopped. Democrats picked up forty seats in the House. Why do the Democrats have to compromise on the border?

The Left and the Right fundamentally disagree on what our country’s most pressing problems are.  For the left, it’s global warming, income inequality, and gun violence. For the right, its border security and terrorism. Who decides what the true crisis is? Under the Constitution, it’s the side that controls the legislative branch. As voters have given Republicans the Senate and Democrats the House, neither sets of “crisis’s”  will be acted upon to anyone’s satisfaction.

Many Democrats do advocate for extreme ideas like abolishing ICE and tearing down existing border barriers, but it’s important to remember that these extreme Democrats were elected by the voters. That the voters made a foolish decision doesn’t constitute justification for a national emergency declaration.

The right tactic for the President is to make his case to the American people and use the power and prestige of his office to persuade the American people to such a degree that Democrats face a greater risk for refusing to negotiate than they do compromising with the President . Alternatively, the President could persuade voters  to throw out the Democrats in the 2020 elections. Unfortunately, this President has very little political capital to do that because of many problems that are of his own making, but that also doesn’t constitute justification for a national emergency declaration.

Many members of Congress  have backed the Article One Act, which would cancel national emergency declarations unless Congress acts to approve them in thirty days. More congressional oversight is always a good thing, and I think the Article One Act would bolster the legitimacy of the mostly reasonable uses of the Emergency Powers that we’ve seen over the past forty years. However,the President has said he will veto this bill, and I think there’s little reason to be optimistic that the Article One Act will gain enough to pass over a Presidential veto.

In many ways, it reminds me of Congressional Republicans voting for big spending increases but insisting they’re fiscal conservatives because they support a Balance Budget Amendment, which they know will never pass Congress. That political game allows Republicans to claim support for fiscal responsibility while practically voting for fiscally reckless budgets, so support for the Article One Act coupled with opposing overturning the President’s emergency resolution allows Republicans to be for theoretically limiting executive power while practically refusing to take action to stop the abuse of that power.

As I’ve already shown, prior to President Trump, many Presidents used the National Emergencies Act, but none had abused it.  Prior to Trump, the Article One Act was necessary more in theory than in practice. Had Congressional Republicans joined with Democrats in rejecting President Trump’s power grab, it would have sent a message to President Trump and future presidents that Congress wouldn’t allow the President to use the National Emergencies Act to legislate from the Oval Office. It would have signaled members of Congress would protect the constitutional prerogatives of the legislative branch of government even if they agreed with the President’s cause.

Instead, Congressional Republicans (with few exceptions) acted as partisans, allowing the President to seize legislative power to avoid an angry Twitter mob coming after them. Expect Democrats to likewise support the global warming, health care, funding for abortion, and gun control emergency declarations that will come down the pike when a Democrat becomes President and decides the opposition party is obstructing solutions to what they consider to be a crisis issue.

Republicans will come to regret not only President Trump’s emergency declaration, but the political games they played to acquiesce to it.

Photo Credit: Gage Skidmore

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