Guest article written by Brian W. Ryman, submitted to The Libertarian Vindicator
With more than a year left in his first term* it might seem premature to write about Trump’s enduring legacy. Unfortunately, it might not be too early, but too late.
Many will defend Trump by saying that he is shaking up the Washington establishment and cutting through red tape and regulations. They buy into his “drain the swamp” narrative. Unfortunately, Trump is not draining the swamp, nor removing “the deep state”. He is simply churning the muck and muddying the waters to obfuscate the entrenchment of his cronies. The only red tape that he has cut had been crafted to constrain the executive power of the presidency. The economic benefits spurred by slowing the rate of regulatory expansion have been offset by his added controls on trade and commerce.
But the biggest threat to the American Republic – Trump’s enduring legacy, will be the expansion of presidential power through executive caveat and the abrogation of our tripartite government. Let me show how he did this.
On February 15, 2019, President Trump issued Proclamation 9844 “Declaring a National Emergency Concerning the Southern Border of the United States”. With this declaration, Trump subverted the funding legislation that he had just signed to end a partial government shutdown to fund the construction of his border wall. In this declaration of an “emergency” Trump stripped Congress of its power of the purse and affirmed that a president can do just about anything he chooses without the approval of the people’s representatives.
So on what legal grounds did Trump take this action? In his proclamation, Trump asserted that his authority was “vested in me by the Constitution and the laws of the United States of America, including sections 201 and 301 of the National Emergencies Act”. Of course, the Constitution nowhere gives the president that authority so let’s look at the National Emergencies Act.
The National Emergencies Act of 1976 was an attempt to formalize the procedures for declaring a national emergency and did not speak to how “national emergency” is defined. According to his apologists, this gives Trump a free hand at using this tool for his own ends. Fortunately for the rest of us and to those who believe in a fettered executive, the Supreme Court has found that “[a] fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” That means a national emergency must be an emergency.
According to common usage AND Black’s Law Dictionary, an emergency is a “Situation requiring immediate attention and remedial action. Involves injury, loss of life, damage to the property, or catastrophic interference with the normal activities. A sudden, unexpected, or impending situation.” The fact that people have been entering our country over our southern border since the formation of our country, and that such migration had slowed belies the contention that it was sudden or unexpected and required remedial action. The fact that Congress had taken up and rejected Trump’s funding request on numerous occasions shows that no exigent circumstances were demanding immediate unilateral action by the executive. The fact that his proclamation was NOT based on a real emergency is buoyed by Trump’s statement on the day of his declaration, “I could do the wall over a longer period of time. I didn’t need to do this – but I’d rather do it much faster.”
Emergency powers are a tool that should never be used lightly. Trump has exercised them in a manner more egregious than any of his predecessors. Possibly the closest analog to Trump’s action is Truman’s attempted government seizure of the countries’ steel mills during the Korean War. This was stopped by the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer. In his concurring opinion, Justice Jackson wrote, “The appeal … that we declare the existence of inherent powers ex necessitates to meet an emergency asks us to do what many think would be wise, although it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies”. We see here that Trump kindled and emergency to get his way.
So what is the aftermath?
Trump’s declaration of a national emergency was not a surprise. He had been putting out political feelers by misusing the term “national emergency” since at least October 25, 2018, when he responded to news of a migrant caravan of several hundred people moving toward our southern border by tweeting, “Brandon Judd of the National Border Patrol Council is right when he says on @foxandfriends that the Democrat inspired laws to make it tough for us to stop people at the Border. MUST BE CHAN[G]ED, but I am bringing out the military for this National Emergency. They will be stopped!”. On January 7, 2019, he started his misinterpretation of the law by quoting one of his toadies, “Congressman Adam Smith, the new Chairman of the House Armed Services Committee, just stated, “Yes, there is a provision in law that says a president can declare an emergency. It’s been done a number of times.” No doubt, but let’s get our deal done in Congress! “. On February 10th, he threw down a gauntlet before Congress and retweeted another sycophant’s post, “President is on the sound legal ground to declare a National Emergency. There have been 58 National Emergencies declared since the law was enacted in 1976, and 31 right now that are currently active, so this is hardly unprecedented.” Congressman @tommcclintock “.
On February 14th, Nancy Pelosi took up the gauntlet offered Congress stating, “You want to talk about a national emergency? Let’s talk about today, the first anniversary of another manifestation of the epidemic of gun violence in America. That’s a national emergency. Why don’t you declare that emergency, Mr. President? I wish you would. But a Democratic president can do that. A democratic president can declare emergencies as well. So, the precedent that the President is setting here is something that should be met with great unease and dismay by the Republicans.”
And that got things going.
Then-candidate Kamala Harris, while she initially condemning Trump’s actions by tweeting, “Declaring a national emergency over this President’s vanity project is ridiculous. We don’t need a wall. Instead, we should address the actual emergencies facing our country — everything from gun violence to the opioid crisis.”
12:57 PM – 14 Feb 2019
“The President’s national emergency declaration is completely unnecessary and a waste of taxpayer resources. This is a crisis of his own making.” – 16 Feb 2019
later embraced the idea of using National Emergencies to enhance executive action.
From her web page: If Congress fails to send comprehensive gun safety legislation to Harris’ desk within her first 100 days as president – including universal background checks, an assault weapons ban, and the repeal of the NRA’s corporate gun manufacturer and dealer immunity bill – she will take executive action to keep our kids and communities safe.
Four days after Trump’s proclamation, Elizabeth Warren was asked what things would warrant a presidential declaration of a national emergency. She quickly responded, “Oh, let’s do the list: climate change, gun violence, student loan debt — right off the top” .
Candidate Tom Steyer has also taken a cue from the president stating that he “will declare a national climate emergency on day one and use the powers of the presidency to address the crisis”. He further confirms that he will do so without the input of Congress lamenting that “If we are waiting for congress it’s not going to get done. Congress has never passed an important climate bill ever.” He frames his qualifications for such dictatorial control by noting “I have spent a decade fighting and beating oil companies, stopping pipelines, stopping fossil fuel plants…”
Trump’s legacy is that future presidents will not be bound by Constitutional constraints. They need to give no solutions, practical or political. They must simply assert a willingness to undo what we have now through a presidential decree. Current Democratic challengers have shown that they plan to use the precedent set by Trump to declare emergency powers to circumvent Congress on matters of the drug war, gun control, regulation of the economy in the name of climate control and student loan debt. With Trump’s blessings, there will be no restrictions on executive power. The Bill of Rights will become a dead letter to be referred to rhetorically but with no power.
*-the use of the term “first term” is a concession to the fact that I fear he will be reelected based on the caliber of his Democratic opponents.
Categories: Donald Trump