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Donald Trump's emergency declaration is an attack on democracy

USA TODAY logo USA TODAY 2/15/2019 Chris Truax
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President Trump has officially declared an "emergency" on the southern border so that he can build his wall.

I won't go into all the reasons why this emergency is bogus or why, even after declaring an emergency, he still won't be able to build his wall. Instead, I want to discuss why willfully damaging our democratic institutions for a little short-term political gain is a very bad, very un-American, idea.

If there is any emergency at all here, it's a political one. President Trump felt no pressing need for the wall for the last two years and nothing of emergency proportions on the ground has changed. What has changed is control of the House. When Republicans lost their unified control of Congress, President Trump lost any chance whatsoever of fulfilling his "Build the wall!" promise that his base loves so much.

So the "emergency" here is that President Trump isn't able to get Congress to agree to what he wants. If he's unable to build his wall, even his most dedicated fans will turn on him. That may seem like an emergency to President Trump, but it certainly isn't the kind of thing that could, even theoretically, justify making an end-run around Congress. People booing Donald Trump at his rallies is not the equivalent of the zombie apocalypse.

 

The old saying that what goes around comes around is nowhere more true than in politics. The reason that Donald Trump and the Republican Senate have been confirming very conservative judges at a breakneck pace isn't down to Mitch McConnell's political savvy. It's because Harry Reid, the former Senate majority leader, decided to eliminate the filibuster for judicial nominations so that it would be easier for Democrats to confirm more liberal judges. How's that working for you, Harry?

President Trump's declaration of an "emergency" on the southern border is exactly the same thing. Someday, Democrats will control the presidency and won't be able to get, say, a Republican Senate to take action on one of their pet issues. If President Trump can declare an emergency to expropriate land and build his wall, some future president will be able to declare an emergency to shut coal mines and build windmills.

Nor is this threat fanciful as numerous Democrats, including Nancy Pelosi herself, have made the warning — or perhaps, threat — explicit. Rep. Emanuel Cleaver tweeted, “Gun violence is a national emergency. Climate Change is a national emergency. Income inequality is a national emergency. Access to healthcare is a national emergency. Building a wall on the southern border is not."

  Circumventing Congress

None of these things are even a remotely acceptable reason for attempting to circumvent our constitutional system of government and the ordinary legislative process. And I think it is safe to say that every Republican in Congress would be violently opposed to any effort by a Democrat to do so. But sauce for the goose is sauce for the gander and if Republicans are unwilling to oppose President Trump declaring an emergency because he is unable to get Congress to pass the legislation he wants, they won't be able to object when President Sanders does the same thing.

Our democratic institutions are far more important than whatever the issue of the day happens to be. Twenty years from now, no one will remember whatever it is that seems so important to us today. But our institutions endure and if we damage them, everyone will remember what we have done, whether twenty years from now or a hundred. There is nothing that can justify opening the door — even a crack — to the idea that a president is entitled to rule by decree when politics and our constitutional system of government become inconvenient.

Fortunately, Congress will have an opportunity to reject President Trump’s emergency declaration. The National Emergencies Act allows Congress to pass a joint resolution overturning an emergency declaration. If the President vetoes the resolution, both houses of Congress would have to vote to overturn his veto by a 2/3 margin to terminate the emergency. This is a steep hill to climb but not an impossible one, especially when there is so much at stake.

Declaring an emergency in the absence of one is an affront to our constitutional system of government and the rule of law itself. Our southern border isn't facing an emergency, but our democratic institutions are. No president should ever be allowed to invoke "emergency" powers simply because they can't get what they want through the normal political process. That is a gross abuse of the Office of the Presidency and sets a dangerous precedent for future presidential administrations. Every American, regardless of party, should oppose it. Congressional Republicans, in particular, need to stand up to President Trump and block this emergency declaration. If they do not, they will have no one to blame but themselves for what comes next.

Chris Truax, an appellate lawyer in San Diego, is on the legal advisory board of  Republicans for the Rule of Law. 


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