• Ryan O'Connell

Up Against The Wall

January 13, 2019

We are on the verge of facing the constitutional crisis that we’ve dreaded since Donald Trump was elected president. Trump, terrified that he will not be re-elected in 2020 if he doesn’t get his wall, has floated the idea of declaring a “national emergency”. The rationale behind this gambit is that Trump could use his “emergency” powers to “reallocate” funds that Congress has budgeted for other purposes, such as disaster relief for Puerto Rico and other areas hit hard by hurricanes.

In other words, Trump would misappropriate funds and defy the will of Congress, which has refused, on a bipartisan basis, to allocate the $5.7 billion he has demanded for the wall. It’s worth noting that Trump failed to obtain that funding during the two years that the Republicans controlled all three branches of government. And in December, the Senate overwhelmingly passed a spending bill that did not provide funding for the wall. The Senate took this step on the reasonable assumption that Trump would sign the bill, just as he had in the previous two years.

But then far-right commentators like Ann Coulter and Laura Ingraham went on the attack. They warned that Trump might lose his base, and the election in 2020, if he abandoned the fight for the wall. Trump likes to act tough, but politically he is in a weak position, with a low (42%) and stagnant approval rating. So Trump caved in to pressure from a handful (but an influential handful) of pundits obsessed by immigration issues. Trump reversed his position and refused to sign the bill, stunning Republican Senate leaders.

The other change, of course, is that the Democrats have won a majority in the House. However, Trump has not accepted the principle that the Democrats now control the legislative agenda in the lower chamber. Elections have consequences, but this president is not prepared to share power with the Democrats.

What’s truly scary is that if Trump declared a “national emergency”, he might get away with it. If Trump succeeded, he would drastically weaken Congress’ power. This would be a huge blow to our system of checks and balances, and it could set us on the road to autocratic rule.

Since the founding of our Republic, Congress, not the executive branch, has held the “power of the purse”. Article 1 of the Constitution states: “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills”. Congress, rather than the president, appropriates funds for certain purposes…or it chooses not to. This is one of Congress’ key roles and its main source of power.

The framers of our Constitution were “unanimous that Congress, as the representatives of the people, should be in control of public funds—not the President or executive branch agencies”, according to the House of Representatives’ archives. The Founding Fathers were worried about the potential dangers of a strong executive in their new country. They were influenced by the British example, where the House of Commons had the exclusive right to create taxes and spend revenue. The framers considered these powers a critical check on royal authority.

In normal times, presidents negotiate with leaders in the House and the Senate. Previous presidents have understood that they will win some and lose some; they won’t always convince Congress to fund pet projects. That is an integral part of our democracy, with its give-and-take. But Trump is seeking, essentially, to take away Congress’ power of the purse, by doing an end-run.

Flying the Friendly US Border Skies

Let’s put this fight in context. Trump is demanding $5.7 billion to construct a wall/barrier/obstruction along a portion of our border with Mexico. The U.S. budget for fiscal 2019 is $4.4 trillion, so the funding for the wall is a rounding error. If Trump can use an “emergency” as a ruse to get funding for such a relatively small project, how can Congress block him from pursuing larger ventures on his own?

Declaring an “Emergency” Could Threaten Our Democracy

As the impasse has dragged on, the weak men, the sycophants like Sen. Lindsey Graham, have called upon Trump to declare an emergency, as an easy way out of the mess the president has caused. To his credit, Senator Marco Rubio has opposed such a move, precisely because of the constitutional threat it poses. However, Republican leaders don’t have a good track record of blocking Trump’s moves, so we can’t rely on them

Even worse, if Trump declared a national emergency and Democrats brought a legal challenge, Trump might prevail in court. The legal commentator Jeffrey Toobin has warned:

“The National Emergencies Act is a sloppily written statute that, even though it was passed in response to Watergate, presupposes a level of good faith on the part of the President. This is because the law doesn’t provide a definition of “emergency”, thus leaving that determination up to the Commander-in-Chief”. (The New Yorker, Jan. 11, 2019)

Assuming good faith on Trump’s part would be foolish, of course. This is, after all, the man who has invoked “national security” to impose tariffs on stalwart U.S. allies like Canada, Japan and Germany. Trump will swing any club he can find.

It would be tragic if the wall came to be a concrete symbol not only of Trump’s Fortress America, but of the twilight of our democracy.

The Wall Street Democrat

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