Shred­ding the Con­sti­tu­tion

Pres­i­dent Trump is run­ning roughshod over the sep­a­ra­tion of pow­ers to get his bor­der wall; will the GOP let him do it?

Baltimore Sun Sunday - - OBITUARIES -

Our view:

Pres­i­dent Don­ald Trump’s plan to use his na­tional emer­gency pow­ers to or­der the mil­i­tary to build a wall on the U.S.-Mex­ico bor­der is a clear and ut­ter fraud. How do we know this? His own ad­min­is­tra­tion tells us so.

Late last month, Direc­tor of Na­tional In­tel­li­gence Dan Coats pre­sented the lat­est ver­sion of the World­wide Threat As­sess­ment of the U.S. In­tel­li­gence Com­mu­nity to the Se­nate Se­lect Com­mit­tee on In­tel­li­gence. It runs to 42 pages, de­scrib­ing threats from cy­ber at­tacks, in­flu­ence op­er­a­tions around elec­tions, ter­ror­ism, pro­lif­er­a­tion of weapons of mass de­struc­tion, drug traf­fick­ing and other global trends that could put Amer­ica’s cit­i­zens and in­ter­ests at risk. What about the mi­grants from Cen­tral Amer­ica seek­ing to cross the south­ern U.S. bor­der? It men­tions them, on page 41, in a para­graph not­ing the stepped-up ef­forts of their coun­tries of ori­gin and Mex­ico to stop them.

The sit­u­a­tion at the bor­der presents an emer­gency, all right — a po­lit­i­cal emer­gency for Pres­i­dent Trump. He has spent the last three years promis­ing to build a wall as away to stoke xeno­pho­bia among his po­lit­i­cal base, yet he was un­able to per­suade Congress to au­tho­rize it when his party con­trolled both cham­bers, and he cer­tainly can’t now that Democrats have a ma­jor­ity in the House. He has learned that shut­ting down the govern­ment doesn’t work ei­ther as a ne­go­ti­at­ing or a po­lit­i­cal tac­tic, but he also can’t give up on the wall with­out en­rag­ing his base. It’s a prob­lem, and one en­tirely of his own mak­ing.

The Con­sti­tu­tion gives Congress, not the pres­i­dent, the power to raise funds and ap­pro­pri­ate them. Congress has al­lowed a nar­row ex­cep­tion — a pres­i­dent has some au­thor­ity to ap­pro­pri­ate funds in ways Congress did not specif­i­cally au­tho­rize dur­ing a na­tional emer­gency. Congress has un­equiv­o­cally re­jected the idea that the sit­u­a­tion at the bor­der re­quires build­ing Mr. Trump’s wall. His dec­la­ra­tion is a mat­ter of con­ve­nience for him, not of ur­gent ac­tion to pro­tect the na­tion.

The mat­ter will cer­tainly be taken to court by out­side groups and pos­si­bly the Demo­cratic House ma­jor­ity. They have a strong case, at least for parts of the fund­ing Mr. Trump re­port­edly in­tends to use. For ex­am­ple, the largest pot of money po­ten­tially avail­able to him is in the De­part­ment of Defense, but us­ing it even un­der an emer­gency is only al­lowed when the cri­sis at hand

the use of the armed forces. Since bor­der security is han­dled by the De­part­ment of Home­land Security, and since Mr. Trump has hereto­fore pro­posed build­ing the wall us­ing civil­ians, it patently does not.

But the more im­por­tant ques­tion is how Congress will re­act. The law al­lows the House and Se­nate to pass a res­o­lu­tion re­ject­ing the dec­la­ra­tion of an emer­gency, and it pre­vents the Repub­li­can lead­er­ship in the Se­nate from block­ing a vote on the mat­ter if it is passed by the House. Sev­eral Repub­li­can sen­a­tors have al­ready voiced ob­jec­tions to the pres­i­dent’s ac­tion, so it ap­pears likely that such a mea­sure would pass.

But Pres­i­dent Trump would have the op­por­tu­nity to veto it — and surely he would, for the drama that would cause if no other rea­son — and Congress could only over­ride him with a two-thirds vote in both cham­bers. At that point, the Repub­li­can Party would have to con­sider what is more im­por­tant: giv­ing this pres­i­dent a win on build­ing a wall the ma­jor­ity of Americans don’t want or main­tain­ing a sem­blance of checks and bal­ances. If they have even the slight­est re­gard for the Con­sti­tu­tion — not to men­tion self-in­ter­est, given the pos­si­bil­ity that a future Demo­cratic pres­i­dent could de­clare an emer­gency to deal with some­thing that ac­tu­ally is an emer­gency, like cli­mate change — they’ll choose the lat­ter.

We know what they should do. So do they. But sadly, we also know they won’t do it. Mr. Trump may get his wall, but for Repub­li­cans, it will come at a tremen­dous cost.

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