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We Aren’t In A Constitutional Crisis. We’re In Several.

Both Congress and the presidents are to blame.

House Speaker Nancy Pelosi said this week that she agrees with House Judiciary Chairman Jerry Nadler that the United States is undergoing a constitutional crisis due to Attorney General William Barr’s refusal to provide an unredacted version of the Mueller report to Congress. Pelosi is correct that the US is in a constitutional crisis – a series of constitutional crises to be exact – but not in the way that she means.

There have been many explanations of why the Democrats are off base with their contempt vote against Barr so I won’t cover that ground here except to say that Barr is following the law in his actions. Certain parts of the report cannot be released because federal law prohibits it. President Trump’s claim of executive privilege, which will most likely only last until Barr can ready a more lightly redacted version of the report for congressional distribution, is justified in this case.

When it comes to the congressional request of President Trump’s tax records, the shoe is on the other foot. The IRS code requires the Treasury Secretary to provide certain congressional officials with any taxpayer’s return and tax information. Nadler has provided a legitimate, if contrived, reason for the request, but Secretary Mnuchin has refused to comply. Since the request falls under congressional oversight of the executive branch and the separation of powers specified in the Constitution, Mnuchin’s refusal could be considered as fomenting a constitutional crisis.

Yet the congressional fishing expedition with respect to Trump’s personal financial data is transparent. Even though House Democrats are acting within the law with respect to the subpoenas of Mnuchin and Trump’s tax returns, their unspoken rationale of finding dirt, possibly criminal wrongdoing, on the president or simply using the information to embarrass him is outside the scope of congressional powers. Congress has rights to the information for certain reasons but not for the purpose of seeking revenge on the president. Nevertheless, “because it will embarrass the president” is not a legal ground to refuse a legitimate congressional request. If Congress abuses its authority to oversee the president then that is also a constitutional crisis.

A third constitutional crisis regards President Trump’s tariff war. The first salvo in the trade war was fired on March 1, 2018, when the president announced his intention to impose protective tariffs on steel and aluminum. The tariffs were imposed under section 232 of the Trade Expansion Act of 1962 which allows the president to impose national security tariffs. While the rationale was doubtful given the strength of the US steel and aluminum industries, a court did declare these tariffs constitutional earlier this year. Further, CNN pointed out that under a series of laws such as the Trading with the Enemy Act of 1917, the International Emergency Economic Powers Act of 1977, and the Trade Act of 1974, the president has almost unlimited authority to declare tariffs without congressional approval.

The constitutional crisis, in this case, is that Congress has abrogated its authority to “lay and collect taxes, duties, imposts and excises” under the Constitution. Congress has delegated this important power away to the president and the country is now feeling the effects of congressional impotence. Congress needs to reclaim this authority, if not now, then soon after President Trump leaves office.

Yet another constitutional crisis concerns the internal Department of Justice memo that prevents indictment of a sitting president. The special counsel’s decision to abide by the DOJ policy and then pointedly state that he could not say that Donald Trump did not obstruct justice left America in limbo. The claim of “no collusion, no obstruction” is obviously incorrect, but as yet there is no resolution to the president’s unethical, quasi-illegal behavior. The president should not be above the law. If he committed an act that would be a crime for an ordinary, nonpresidential American then he should be prosecuted just as they would. The DOJ memo was intended to prevent baseless persecution of the president by the opposition, but it unintentionally created a Get-Out-of-Jail-Free card for presidents without respect for the rule of law.

Next is President Trump’s decision to declare a national emergency to bypass Congress. When the emergency was announced in February it was big news, but this crisis has since been forgotten with the onset of a number of succeeding scandals. Yet the national emergency is a constitutional crisis that undermines the very existence of Congress. Under President Obama, Republicans were adamant that the House had the “power of the purse,” but now most feel that it is fine for President Trump to ignore a Congress that won’t do his bidding. Regardless of whether building the wall is a good idea or not, claiming a national emergency to procure funds for it against the express will of Congress is a horrible precedent, but one that is sure to be repeated by future presidents if it is not quashed by either Congress or the courts.  

The final constitutional crisis (at least so far) is Congress’s failure to rein in the imperial presidency. Donald Trump figures prominently in many of the ongoing constitutional crises but not all are unique to him. For example, Barack Obama’s executive decisions on DACA usurped congressional authority and his executive agreement with Iran undercut the Senate’s constitutional role of ratifying treaties. The abdication of congressional authority to levy tariffs goes back decades. The presidency will continue to become ever more powerful unless Congress takes steps to assert itself.

A major part of the problem is that congressional partisans have an attitude that the end justifies the means. Partisans of both sides refuse to hold their own presidents accountable because they like the results of their expansion of executive power. Democrats approved of Obama’s DACA deal and Republicans love Trump’s national emergency. If Congress is going to successfully limit presidential authority, it will require both sides to cross the aisle and work together to uphold the constitutional limits on the executive branch.

Reaching across the aisle is often considered traitorous these days, but the Congress has a higher duty to the Constitution than to the political parties. If Congress doesn’t act to defend the Constitution, presidents of both parties will keep chipping away at it until there is no need for the legislative body at all.

Benjamin Franklin famously said at the close of the constitutional convention that the delegates had decided on “A Republic if you can keep it.” The slow erosion of congressional authority shows that the struggle to keep the Republic must go on.

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