President Trump may be right in his legal analysis of his declaration of emergency — lose, lose, lose, then win, maybe.
He’ll certainly be blocked by the lower courts and then have some chance to prevail in the Supreme Court, which may well be reluctant to adjudicate a conflict between the two branches of government, or to second-guess the commander-in-chief’s determination about what constitutes an emergency or spending for a military purpose. (He will also access other pots of money that don’t require a declaration of emergency, and here he may be on much firmer ground legally.)
We oppose the president’s decision to declare an emergency and repurpose billions of dollars of defense spending to the border, purportedly to support the military, not because we are confident it will be ultimately blocked by the courts, but regardless of whether it will ultimately be blocked by the courts. Even if the president technically has this authority, using it explicitly to bypass the congressional spending power is an abuse of it.
The laws that the president will use were clearly written with some dire national-security event in mind that would make it impossible for the president to go to Congress with the necessary dispatch. We believe there is a crisis at the border, but obviously nothing of this nature, as witnessed by the years-long attempt by the president to get Congress to fund his border wall, including the latest drawn-out political confrontation and negotiation. The president isn’t acting unilaterally because he can’t go to Congress, but because he has done so and he did not fully get what he wanted.
There is much angst about the precedent that Trump is creating. We share it, even if it is rich coming from Democrats who didn’t raise any objection to Barack Obama’s “pen and phone” governance. Obama rewrote our immigration laws on his own to impose his unilateral amnesties. At least Trump has colorable statutory authority for his move; Obama had none.
Ultimately, if Congress wants to reassert its prerogatives, it can’t leave statutes on the table that can easily be exploited by the executive, and it must object to executive overreach even when it suits its partisan purposes. Harry Reid didn’t care when Obama went around Congress, and it pains us to say that Mitch McConnell, ordinarily the Senate’s most rigorous institutionalist, is now publicly following Reid’s example.
This is no way to run a railroad, or to preserve what are supposed to be the guardrails around our constitutional structure.