Trump’s trumped-up ‘national emergency’
One of the more perilous Trump legacies is a stark simple-mindedness of which his border-wall melodrama is an apt example. He has shut down the government in a stagy attempt to blackmail the opposition and occasionally threatens to declare a “national emergency” over this fictitious threat.
When you live in a world of falsification and delusion, as President Trump does, you really can make up your own set of facts. It is true that presidents have been challenged by genuine national emergencies — as Lincoln was in the secession crisis, Franklin Roosevelt in the Great Depression of the 1930s and George W. Bush after 9/11. But presidential declarations have the force of law only if Congress endorses or collaborates in them.
That is unlikely now, with the Democrats in control of the House. But consider the idea itself. An example much cited of late was President Truman’s plan to nationalize the steel mills in 1951. The country was mobilizing for a “police action” to protect the UN-granted U.S. protectorate of South Korea. The South had been invaded by the North in the previous June, with the furtive encouragement of Josef Stalin. A steel strike was threatened; and steel is obviously essential to a war effort. Thus the steel seizure case soon became a judicial cause celebre in the Supreme Court, which after due deliberation ruled the Truman seizure invalid.
It was, said the court in suitably deferential language, lawless – literally so. Congress had not provided for such an invasion of private property; and the Constitution is explicit about the invalidity of seizures without due process. This was the essence of the ruling. The Supreme Court, having answered the immediate question, felt no further need to say whether or not an entire industry could be nationalized with congressional approval. The implication was that it could be, given a crisis of sufficient severity, but so far as I know, no such issue has occurred in American history. Nor, so far as I know, has the Steel Seizure precedent been reversed.
Trump’s antics at the Mexican border are calculated to persuade his gullible followers that there is, indeed, an “emergency” there, although the facts and statistics — and the trends they describe — say otherwise. The question is: What will happen if he issues a formula of words “declaring” a fictitious emergency? Ordinarily, an action so bereft of fact would not survive even a first round of judicial consideration. And on appeal, the Supreme Court would dependably concur, possibly citing the Steel Seizure precedent.
But Trump’s threat is not ordinary. Trump has made no secret of his ambition to reshape the federal judiciary by partisan appointment into a rubber stamp of his own caprices. So if Trump makes good on his threat to “declare a national emergency,” and if, having armed himself with this pseudo-authority, he ventures to begin shifting public monies to his purpose (as seems to be implicit) we shall see whether checks and balances still function. Here, alike in its bogus assumption of presidential authority, and in its violation of the constitutional restriction of expenditure to duly appropriated budget items, would be a double usurpation.
It is hard to imagine that the high court, even as stacked with Trump justices, can find its way around the Steel Seizure precedent and back up Trump’s imaginary “emergency.” Should it do so we will have the “constitutional crisis” so much speculated about. And that crisis, unlike Trump’s fantasy world from which it arises, will be very real and very dangerous.