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Conniving Politicians Won’t Respect Your Good Faith Effort

There is a lot of talk regarding the likelihood that Trump will set a bad precedent with an emergency declaration.

There are plenty of reasons to support or oppose Trump’s move to declare a national emergency, but I have no interest in discussing those when one of the main reasons given over the past few weeks is that such a move will set a bad precedent.

To be completely honest, I think it’s an idiotic argument.

Here’s why:

  • It ASSUMES that the democrats will respect a good faith effort to obey the limitation.
  • It concedes that congress is no longer the predominant branch of government.

When there was discussion about the filibuster and the various nuclear options that have been implemented or proposed, the argument typically devolved into the compulsion to defend it out of an arbitrary attachment to bylaws that have no basis in the constitution.  This is particularly stupid when the bylaws can change depending on who is in power. And people will scream about tradition and why we need it to stop bad policy, but the practice and the history of it is arbitrary anyway.  Why not require seventy votes in the Senate?  Why not require unanimity? Why sixty instead of fifty-nine? Since nothing besides tradition and utility support it, who is to say that democrats will not see greater utility in getting rid of it?

The bad precedent argument is dependent upon the future intentions of those in power IN THE FUTURE, not the good intentions of those currently in power.  If the power to declare an emergency is on such shaky ground, then bad precedent by Trump will be meaningless.  As Justice Thomas explains with regard to case law, if you connect a bunch of train cars together and the first one is not connected properly to the locomotive, it doesn’t matter how many additional cars you attach, it’s still not connected. 

But if there is the power to declare emergencies like this, then no amount of self-control from Trump will prevent a future president from using that power. 

And this gets us to the last point. All of this is a direct result of congress subjugating itself to the will and convenience of the executive. I have written before regarding congress’ repeated neglect of the Framer’s vision for law making.  If congress were to pass small bills on single issues, the executive would not have the leeway to act in such a way.  Not only that, but congress gave the president the ability to declare emergencies and it may constrain that power because they have the purse.  If congress doesn’t like it, congress may change the law. 

When you spend your time ranting about how Trump is setting a bad precedent, you might want to look at congress.

All you will see is a dejected entity that has forgotten it’s preeminent role in the federal government.  This dejection is the bad precedent we should be concerned about.  Let’s assume that the president can’t declare an emergency, opposing such a move requires congressional fortitude.  We saw what congressional republicans did as the minority party and as the majority party with a royal pain in the butt executive.  They swore up and down that they would stop Obama’s constitutionally suspect policies.  We gave them a house majority and a senate majority after multiple elections and they did nothing!  Do you honestly think that such a congress would dare stop President Kamala Harris?

And when the democrats control every branch of government, does it really matter whether a policy is constitutionally permitted or not?

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