Trump’s trumped-up ‘na­tional emer­gency’

The News & Observer (Sunday) - - Opinion - BY ED­WIN M. YODER JR. Con­tribut­ing colum­nist Ed­win M. Yoder Jr. of Chapel Hill is a for­mer ed­i­tor and colum­nist in Wash­ing­ton.

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.

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