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A Threat to the Constitutional Order

eye on the news

A Threat to the Constitutional Order

The Supreme Court should strike down President Trump’s declaration of emergency. February 17, 2019
Politics and law

The mass unchecked entry of low-skilled immigrants into the U.S. is indeed a crisis, if a slow-moving one.  We are importing a Third World poverty culture that resists assimilation and imposes large fiscal and social costs.  But President Donald Trump’s seizure of emergency powers to deliver belatedly on a campaign promise is a more profound threat. By unilaterally appropriating funds for a border wall that Congress has repeatedly declined to provide, Trump is striking at the constitutional order itself.

Trump’s claims about his brilliant negotiating skills have been torpedoed by the ever-shrinking pot of money that Congress has been willing to cough up for a border wall. Senate Minority Leader Chuck Schumer offered $25 billion in February 2018; that amount was whittled down to $1.6 billion in December 2018, and now Trump has accepted a measly $1.38 billion in the spending bills he signed on Friday. In December 2018, Trump announced that he would own any government shutdown over wall funding, handing House and Senate Democrats an irresistible invitation to reject any meaningful compromise on border control. The political fallout from that first government shutdown boxed Trump in; to avoid more damage, he has agreed to a bill that makes a mockery of his otherwise-defensible claim that illegal Third World immigration is an emergency. If such immigration is an emergency, as National Review’s Andrew McCarthy has pointed out, why are we encouraging more of it through amnesties for illegal aliens already in the country who “sponsor” illegal-alien youth smuggled in by coyotes? Why are we limiting ICE detention beds and promoting a catch-and-release policy for phony asylum seekers? Democratic negotiators have further outfoxed Trump, as Daniel Horowitz’s review of the nearly 1,200-page legislative monstrosity revealed, by banning any concrete border barriers or new prototypes and allowing only a measly 55 miles of steel fencing and bollards. To build a significant wall, Trump will not only have to allocate money over the heads of Congress; he will also have to ignore the construction provisions of this latest budget bill.

Trump squandered the best opportunity to get wall funding when Republicans led both the House and Senate—and wasted the last days of undivided Republican legislative power negotiating over a virtue-signaling “criminal-justice reform” bill. Rather than owning his political miscalculations and vowing to win back a majority for border control at the ballot box, Trump has decided to evade the constitutional process for government appropriations and make his own laws. The National Emergencies Act, under which Trump has casually declared his funding intentions for the wall—“Whether it’s $8 billion, $2 billion, or $1.5 billion, it’s going to build a lot of wall”—is intended to grant the executive additional powers to respond to fast-moving crises, usually of a foreign nature. Most such declarations have been used to freeze foreign assets or block foreign trade. Since 1980, the measure has been used only three times for domestic matters, according to the Wall Street Journal—twice to limit citizens’ involvement with weapons of mass destruction and once to respond to a flu pandemic. One can debate whether the ongoing invasion of illegal aliens is a domestic or foreign crisis—in fact, it is both. But the most important departure from precedent is using the law to appropriate funding for something that Congress has explicitly declined to support. The Constitution grants such appropriation power exclusively to Congress. For Trump to use an emergency power to do what Congress has refused to do violates the most fundamental of the Constitution’s checks and balances. Were such end-runs around Congress to become the norm, we would find ourselves under the thumb of an executive branch that makes law unilaterally.

“We’re going to control the national security crisis on our southern border and we’re going to do it one way or the other,” Trump said after Congress passed the gargantuan spending bill on Thursday. “One way or the other” will not do. Government officials don’t get to make up the procedures for government as they go along. And understanding unchecked illegal immigration as a crisis is a deeply political act, entailing a complex set of assumptions about culture, sovereignty, white guilt, the roots of poverty, and the legitimacy of border controls. To say that we are far from consensus on the existence of that crisis is an understatement. Acting outside the boundaries of the Constitution on a matter so profoundly divisive is unwise, to put it just as mildly.

True, President Barack Obama also acted unilaterally to do what Congress had declined to do, whether granting temporary amnesty to illegal aliens who entered the country as minors or spending unappropriated funds for Obamacare (which Obama did without invoking the National Emergencies Act). But that does not make Trump’s abuse of his power any less consequential or any more acceptable. The mischief that a Democratic president could do with such emergency declarations—shutting down the fossil-fuel industry to fight climate change, for example—has been widely noted.

For centuries, Western political theory has struggled with the problem of how to free individuals from the yoke of capricious power. Humanity’s greatest minds conceived of a government constrained by neutral principles. The ground rules in a constitutional polity are set in advance; they cannot be gamed to give one side of a political struggle an unfair and possibly insuperable advantage. The United States does need a wall on its southern border, accompanied by a radical revision of the legal-immigration system to prioritize skills, language, and assimilability. But if we remove the constitutional boundaries around each branch of government, as Trump’s emergency funding appropriation threatens to do, we will have lost the very thing that makes Western democracies so attractive to the rest of the world. The Supreme Court, when the inevitable legal challenges reach it, should strike Trump’s declaration down. 

Photo by Alex Wong/Getty Images

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