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.

The odd advantages of having a stupid president

The Thinker by Rodin

In case you haven’t noticed, Donald Trump is pretty damned stupid. Obviously he is not retarded. His vocabulary, while often elementary school level, is enough to be understood. He still knows how to apply the spray tan, dye his hair, then lacquer it with industrial strength hair spray. Anyhow, if you have any doubt, watch Trump’s news conference yesterday.

In any normal times, this would have leaders of both parties rushing to invoke the 25th Amendment. And they should have, but of course Republicans in Congress are too cowardly to admit the obvious. He is so stupid. Any half self-aware president would not announce that their national emergency for a border wall with Mexico wasn’t really a national emergency, undercutting the many cases that will come before various courts. But more than a few of them were probably thinking: He’s so stupid he probably doesn’t have the wherewithal to follow through anyhow, so what does it matter? Donald Trump goes for nice shiny objects that are dangled in front of him, hopefully with mirrors that reflect his glorious visage. He has proven staggeringly inept at actually getting anything done.

Think about it: he had control of all branches of government for two years and his signature accomplishment was piling on more tax cuts for the wealthy, something the Republican Party can always agree on. I’m sure I’m not alone in noticing that my federal taxes are actually going up, but I live in a relatively high tax state now (Massachusetts) and I can’t claim to be in the top ten percent of income earners. To the extent he has been successful, it’s been in putting minions in charge of various departments with unusual wile and animus, but who are usually deeply corrupt such as Ryan Zinke and Scott Pruitt. They have no problem throwing people under the bus if it makes millionaires and corporations richer. It’s obvious though that while Trump wants to appear as an effective president, he simply can’t bother to spend the time to actually be one.

So this in a way is an advantage. Yes, he can foul up the machinery of government, but he’s not smart enough to do it adroitly. This means if you are going to elect a fascist as president, he’s the best possible fascist if you want to keep your constitutional democracy. This is because he is so stupid and clueless. He can’t be bothered to actually spend the time necessary to be a mendacious fascist, as his official schedule shows because it is loaded with “executive time” (read: watching Fox News).

It must bother the heck out of Vladimir Putin, but doubtless he was smart enough to realize Trump’s limitations. You get the sycophant you have, not the one you actually need. He was better than nothing but he will hardly bring about the rapid collapse of the United States.

Under the circumstances, our democratic government is handling his presidency pretty well. Many of his cabinet secretaries work against Trump’s aims, and do so overtly. The civil service seems to be morphing as best it can to provide passive resistance. During the latest shutdown, air traffic controllers showed Trump who was really in charge. This is amazing if you recall that Reagan fired all air traffic controllers for going on strike. The courts seem largely untouched, but stacking them with more Republican jurists will prove problematic over time. And now that Democrats control the House, it’s pretty clear that Trump’s agenda is blocked. No wonder then that he is left to declare fake “national emergencies” to stop the flow of migrants into our country, which is just 25% of the peak of the problem during the Clinton presidency.

Although the precedence for this emergency is very bad, don’t lose too much sleep over any more wall actually getting built. While it’s unlikely that Congress will overturn it, it is very likely that it will be ricocheting through the courts at least until the 2020 election, by which time it is likely to be moot. Trump has to hope he can win reelection and convince the Supreme Court to uphold his bogus emergency. That is, if he can be bothered to focus on it for the remainder of his term. Most likely he will be off playing with other new and shiny toys instead.

Should this happen again though it’s unlikely that our next fascist president will be as stupid as Trump. Hopefully Congress will turn blue and rewrite the national emergency law to prohibit exactly what Trump is trying to do. Let’s just be glad that if a Republican had to be elected president in 2016, it was Donald Trump and not Dick Cheney.