Our national emergency non-emergency

The Thinker by Rodin

It turns out we’re having an emergency. It’s a strange one though, because it’s due to the misuse of The National Emergencies Act. We never imaged that a president would invoke the law for something other than an actual emergency. Obviously, Donald Trump has ignored that part and in typical Trump fashion, he went big: really big. That’s the emergency.

Trump’s true “emergency” is that he has a huge ego and it’s under threat. He wants to win reelection and senses he needs to start now. Given that he ran on building a wall on our southern border, he figures if he can’t show progress on this with his base along, he won’t win reelection. Congress keeps rejecting his requests to build more walls. So now he’ll bypass the Congress by declaring that wall is now an emergency. And he’ll take the money from other pots of money that were appropriated by Congress to do it.

You would think this would be malfeasance: an impeachable offense by itself, and Congress might move forward on removing this lawless president. But thanks to the crazy way this law was last amended in the 1970s and 1980s, it now means an evil president may be able to unilaterally reappropriate certain funds unless both houses of Congress can override him with a two-thirds vote. This is the exact inverse of the way the U.S. Constitution was written: money is ultimately appropriated only if both houses of Congress can override a president’s veto.

On Tuesday, the House will take the first step in declaring his emergency not to be one. The chances are iffy in the Senate, but it is probably likely to happen there too. Trump promises to veto the bill, which will mean that Congress will have to come up with a two-thirds majority in both chambers to undo this non-emergency. That’s not likely to happen, thus our emergency non-emergency.

It won’t happen because our Congress is now so partisan that Republicans in it can’t summon the nerve to override Trump’s veto, fearful of primary challenges in 2020 from MAGA heads. They will do this even when they know there is no emergency. It’s sad proof that for most of the Republicans, partisanship now takes precedence over their obligations to country. Like the president, they swear to uphold the U.S. Constitution when they assume office. The benefits of being in Congress must be great, and those pensions must be super-fat to put self-interest in front of the country’s interest. It’s also quite sad. Those of us who remember the Watergate days recall a less partisan time when the interests of the country and maintaining our democracy demanded it, Republicans could rise to the occasion.

This was my assumption too after Trump was inaugurated. I assumed if there was firm evidence for Trump’s impeachment and removal from office, or to remove him via the 25th amendment, Republicans would rise to the occasion. It seemed logical at the time given the Watergate days experience. Forty-five years later though, it’s clear times have changed for the worse. It is now indelibly Party over country, at least for Republicans, unless they calculate that there is no political price they will have to pay.

Granted that many presidents used the National Emergencies Act for things that even at the time didn’t seem like emergencies. And granted also that Congress has mostly looked the other way when these emergencies were declared. It’s still an emergency to block the property of certain U.S. citizens supporting the government of Zimbabwe or Belarus, for example. But these “emergencies” were mostly minor matters and hardly worth Congress’s time to declare them non-emergencies. Nor were these “emergencies” of such broad scope or so egregiously designed to circumvent the will of Congress.

So the act needs to be amended to make some common sense reforms, like Congress has sixty days to vote that it’s an emergency and if it doesn’t then the emergency is not authorized. For me the real troubling part now is that this law has been thoroughly misused. It clearly violates Article I of the U.S. Constitution. The article unambiguously states that only Congress has the power to determine how appropriated funds will be used and their amounts.

Now apparently any “emergencies” that fall under the scope of the act mean the president can redirect funds and use them contrary to Congress’s intent unless two-thirds of Congress says otherwise. Given that the Supreme Court said the Line Item Veto legislation Congress passed during the Clinton years was an unconstitutional usurpation of congressional authority, the precedent to declare the National Emergencies Act unconstitutional too is clearly there.

As I noted in an earlier post, this will ultimately be decided in the courts. If this were an actual emergency, the U.S. Army Corps of Engineers would be busy constructing walls on the border right now and no one would be upset. Curiously, all previous presidents didn’t see it as an emergency. We simply have to hope that the U.S. Supreme Court sees this law as unconstitutional and strikes it down, or at least Trump’s interpretation of it. Yet the court has upheld it in various ways in the past, so this is not a given. However, it is very likely that the issue will linger until past the 2020 election, in which case if Trump loses it will hopefully become moot.

This should be a no-brainer for the courts. For the many so-called strict constructionist jurists on our Supreme Court, it should be obvious this use is unconstitutional, as it is being applied against the express wishes of Congress. Article I is crystal clear. But as I noted, we no longer have a government that puts the Constitution above party loyalty, so it’s no longer a given.

Should Democrats regain Congress and the White House, this should be one in a very high stack of legislative fixes to ensure “emergencies” like this never happen again.