Over the past week, much has been written about the
legalities of President Trump’s national emergency. The debate has focused on
whether the president has the right to divert money that has already been appropriated
by Congress and use it for his pet projects when legislators refuse to fund his
requests. As the debate rages, much of the country seems so blinded by the legal
forest that they don’t see the trees right in front of them.
There are two questions regarding the diversion of funds to
subvert congressional intent with regard to the wall. The first question, the
obvious one, is whether it is legal for President Trump to move money
authorized by Congress from one account to another. A question that is perhaps
more important is whether the president should divert the money, even if it is legal.
The question of legality is far from settled, but the letter
of the law seems to contradict Trump’s purposes, at least with regard to the military
construction funds where much of the $8 billion for the wall is slated to be
taken. There is also the constitutionalist view that Congress is not permitted
under the Constitution to delegate its legislative duties to the president. Nevertheless,
right now, I’d like to look past the question of legality, which is unlikely to
be settled before Trump leaves office in 2020, and focus on the ethical
question at hand.
When President Trump announced his declaration of emergency
last week, he said, “I didn’t need to do this.” That’s a true statement.
As I’ve pointed out before, there is no national security
crisis from illegal immigration. Illegal border crossings are near a 50-year
low and, despite a few high-profile cases, the evidence is that on average immigrants,
both legal and illegal, commit fewer
violent crimes than native-born Americans. The government’s own data show
that the 90 percent of drug shipments come through ports of entry rather than across the unfenced borderlands. The Trump Administration has not
produced any firm evidence of terrorists crossing the border illegally and the statistics
that the Administration has cited show that more suspected
terrorists were apprehended crossing from Canada than Mexico.
Isn’t it unethical to declare a national emergency when there
isn’t one just because you believe it would provide you with a loophole to achieve
your policy goal? Republicans would certainly answer in the affirmative if
Barack Obama or Hillary Clinton had used the tactic.
So why did he do it?
There seem to be two answers to that question. The first is
that Trump’s own base was beginning to fracture after the president’s
miscalculation on the government shutdown. Trump lost leverage and was handed
an ignominious defeat with the compromise funding bill. The president had no
choice but to sign the bill, but his base was still angry at the fact that he
caved. Trump needed a gesture to show the base that he was still a fighter.
The second reason was simply to “own the libs.” In the
absence of great legislative successes, the Republican raison d’etre has become
triggering the left for the sake of making Democrat
heads explode. Never mind that owning the libs makes it more difficult to
bridge the partisan divide and less likely that Republicans can entice
Democrats to cross the aisle to pass good legislation for the betterment of the
country, these days it’s all about feeding red meat to the base and retweeting
the latest Twitter takedown.
While President Trump’s emergency declaration was a move that was destined to be popular with the base, it does lasting damage to what is left of Mr. Trump’s credibility. By signing a spending bill that he had no intention of abiding by, the president failed to act in good faith. In addition to ensuring that no congressional Democrats will ever trust President Trump again, the president’s actions undercut the efforts of serious Republicans to achieve workable compromises as well. Whether Republican negotiators were aware of the White House’s subterfuge or not, Democrats will assume that they were complicit and the incident will have a chilling effect on future negotiations. It is likely that no more significant legislation will come through Congress until after the 2020 elections, almost two years away.
Further, it was clearly not the intent of the Framers that
the president should abuse his emergency authority to subvert the will of the
people and their elected representatives in Congress. Trump supporters will
answer that Donald Trump won the election. That’s true, but he did so while
losing the popular vote. That hardly represents a clear mandate from the people
to build the wall or do anything else except not be Hillary. At any rate, winning
an election does not entitle a new president to a blank check.
This argument also conveniently forgets that Republicans
lost the most recent election. The drubbing that the party received in the
House during the 2018 midterms was due in large part to the Trump Administration’s
heavy-handed immigration policies. Mr. Trump’s final argument prior to the 2018
elections was fearmongering about migrant caravans. Voters rejected this line
of appeal. Notably, many of the seats lost by Republicans last year were in states
on or near the southern border.
Since the 2010 Tea Party wave, Republicans have preached the
line that the House of Representatives holds the purse strings of government.
It took just over a month of Democratic control of the House to have President
Trump’s GOP decide that House appropriations were superfluous to the business of
spending money on something that they wanted. The Republican attempt to free
themselves from constitutional restrictions when they held Democrats to those
same limitations is unethical on its face. Another word that applies is “hypocritical.”
The precedent that Trump is trying to set here is arguably much more damaging to the country than anything that the Democrats are proposing. Seventy percent tax rates can be lowered and the Green New Deal could be repealed, but presidential power grabs are forever.
A final defense offered by some Republicans is that the
Democrats would do the same thing if they had the chance. This is a perverted
version of the Golden Rule that could be summed as, “Do unto others before they
get the chance to do unto you.” This argument has nothing to do with the
Constitution or the rule of law or ethics. This is the law of the jungle where it’s kill or be killed. The problem with this
logic is that Democrats didn’t take the chance when they had it.
The strategy of fomenting a national emergency to advance a
policy goal is closer to the philosophy of Rahm Emanuel, who never let a crisis
go to waste but who also never faked one, than to the Founding Fathers. If the
best that Republicans can offer is an unconstitutional and unethical course of
action, then the Grand Old Party can no
longer call itself a party of law and order or respect for the Constitution. If
Republicans insist on attempting to push through funding for the wall based on President
Trump’s emergency order then they are just as lawless and lacking in character
as the Democrats.
In a case of destroying the village to save it, the GOP has become what it hates, a party that is willing to twist the meaning of the law and push the boundaries of propriety to further its aims. As Walt Kelly wrote in the classic comic strip, Pogo, “We have met the enemy and he is us.”