Trump’s emergency not a crisis, but it may foretell one

In Barack Obama’s second term, with his legislative agenda dead in a Republican-controlled Congress, the president turned to executive unilateralism on an innovative scale. On climate regulation and health care he used the presidential pen to pursue policies denied him by Congress, and on immigration he made a more dramatic leap — claiming a power he himself had previously abjured, and offering a provisional legal status to about half the illegal-immigrant population.

At the time I called this “caesarism” — an attempt to arrogate to the imperial presidency the kind of power over domestic policy that it already claims over foreign and military affairs. Now, that strongman spirit is taking legal form in Trump’s most serious power grab to date: the attempt to use a “national emergency” declaration — a power whose chronic abuse by presidents Congress has never bestirred itself to check — to build the border fencing that the Democratic Party and his own political impotence have denied him.

On the merits, anyone who opposed Obama’s moves should oppose this one as well. The scale of the policy change is smaller, but the defiance of Congress is more overt; the legal foundation might be slightly firmer (as Jell-O is slightly firmer than a pudding) but the bad faith involved in the “emergency” claim is more extreme.

But in terms of the general lure of presidential rule, the general declension of republican norms into imperial habits, I also think Trump’s strongman act is substantially less dangerous than what his predecessors did.

Here I differ not only from liberals who misremember Obama as a punctilious norm-respecter, but also from those conservatives fretting that Trump is establishing a precedent for a future liberal president to impose a Green New Deal by fiat.

For presidential power to meaningfully expand, it is not enough for a president to simply make a power grab. That grab needs to unite his party (ideally it would also divide the opposition), it needs to be cloaked in enough piety and deniability to find support from would-be referees, it needs to appear to be politically successful, and finally it needs to be ratified by the other branches of government, if only by their inaction.

Obama’s attempt to play Caesar in domestic policy had mixed results, since the immigration power grab was tied up by the courts until Trump’s election rendered some of it a dead letter. With Trump, though, the only clear precedent being set is one of deplorable incompetence. He’s taking unpopular action that divides his party and unites the opposition, he’s doing so with a combination of brazen hypocrisy and nonsense rhetoric that makes the power grab impossible to cloak, he’s guaranteeing himself an extended legal battle — and he isn’t even accomplishing any obvious goal except the personal one of saving a tiny bit of face.

This spectacle will not prevent some future president from abusing an emergency declaration more effectively. But the idea that Trump’s grab enables future abuses more than the moves that Bush and Obama made is extremely dubious. So the emergency declaration is not itself a constitutional emergency. Rather, as often in the Trump presidency, it’s a moment that illuminates how a more dangerous would-be autocrat might someday act.