The Emergency Order, Bad Arguments, and Logical Fallacies

Now that President Trump has issued the emergency declaration on the wall, I thought I would reiterate something I said multiple times during the Obama administration: there is no “The President thinks something is really really important but Congress won’t act so the President just gets to do whatever he wants” clause in the constitution. The Veruca Salt standard simply doesn’t exist. While I think the Democrat opposition to the wall is overwrought (and indeed now some have even indicated they want to remove the border barriers that doers exit), President Trump has had ample time to secure additional border wall funding. A changeover in Congressional leadership doesn’t constitute a national emergency.

I wanted to take the bulk of this post to address some of the responses I’ve seen, both in opposition and in defense of this action.

I’ll start with one argument made by opponents of the move that I deem to be overstated. They argue that this will set a precedent for future Democratic presidents to declare national emergencies over, say, climate change and healthcare*. There is a little bit of truth to this – as I said on twitter, each new precedent has a bit of snowball effect. But when looking at the cast of characters which constitutes the current Democratic presidential field, who doesn’t think that one of them will do this anyway? President Obama’s DACA order was arguably even less meritorious than President Trump’s actions here (where exactly was the crisis in not providing legal status to the children of illegal immigrants?), and it was President Obama who uttered his petulant “I’ve got a pen and a phone” threat when he grew frustrated with the constitution’s pesky limitations. If anything, Democrats have grown even more radical, and I don’t think President Trump increases the likelihood of future despotic actions.

* I’ve seen more than a few tweets in recent days about 28 million uninsured Americans being a graver national emergency. But I’m confused: wasn’t Obamacare supposed to solve this problem? I thought Obamacare was a “big fucking deal.” Well if there are still 28 million uninsured, maybe it was really nothing more than a “little useless clusterfuck.”

The flipside of the above is the argument from defenders of the administration is that we already have precedent, so Donald Trump’s actions are not unprecedented. Again, there’s an element of truth here, but that doesn’t make right-wing defenders of the president any less hypocritical. If you were (rightly) crying bloody murder every time President Obama used his pen and picked up his phone, you cannot now defend President Trump doing the same. If the “but daddy I want it” justification for emergency declarations is pathetic, even worse is the “but mommy he did it first” defense of the declaration. Speaking of setting precedents, you now have sent a clear message that the right-side of the political spectrum is cool with unilateral, unconstitutional, and unlawful presidential declarations so long as the end-result is fine by you. That seemingly less than about ten percent of the American public consistently even cares about constitutional law is indeed depressing.

As for the unlawful part of this, defenders say that “hey, Congress set us on this path, and the president is just doing what’s in his legal authority.” I’m not one to shy away from blasting Congress for cowering in fear to assert its rights as the superior  branch of the federal government, but I am not persuaded that the president is acting within the very generous parameters laid out by Congress. As David French explains in National Review, this is an abuse of the statutory authority given away by Congress.

Look at the list carefully. He’s listing criminal challenges. He’s listing humanitarian challenges. He’s listing the problems on the border that have existed for decades and that Congress has enacted comprehensive statutory schemes (including funding civilian wall construction and civilianimmigration authorities) to combat. Gang activity and drug-smuggling are grave problems, but they are crimes, not acts of war. The declaration doesn’t even try to argue that there is a precise, unique challenge that only the military can counter — such as a national disaster that would require the use of the military’s unrivaled heavy-lift capabilities or its immediate access to manpower.

Instead, the declaration cites the wasteful 2018 border deployment, but that is only evidence that the military has been used, not that it must be used. If the mere fact of a deployment were proof of the necessity of military intervention, then there would be no limiting principle on a president’s action. The message is clear — the military is “required” simply because he says it is required.

I was called a “neocon” on Twitter for having the temerity to argue that the president has no constitutional or statutory authority to justify issuing this emergency declaration. It is a sign of the lack of intellectual heft of much of the populist right that they believe defending constitutional norms is a sign of “new” conservative thinking.

I guess I could just sit back and laugh when President Harris issues a presidential emergency declaration shutting down the health insurance industry and forcing all Americans onto Medicare. It could be humorous to see the contortions of the overwhelming majority of Americans suddenly switching their opinions on such declarations. Instead I’ll just weep as our constitution becomes all but a dead letter.

That’s Not How the Constitution Works, Mr. President

Hey guys, do you recall the “if Congress isn’t being reasonable, the President gets to do what he wants” clause of the U.S. Constitution? I don’t, but evidently President Trump has access to the secret Constitution.

President Trump on Wednesday resumed his threat to bypass Congress and fund the construction of a border wall by declaring a national emergency if Democrats maintain their opposition to his funding demands.

“I have the absolute right to do national emergency if I want,” Trump told reporters during a White House pool spray. “My threshold will be if I can’t make a deal with people that are unreasonable.”

As AP reminds us earlier in his post, this is the same exact rationale President Obama employed with DACA. It was outrageous then, and it is outrageous now for President Trump to consider using executive action here.

President Obama threw quite a few presidential tantrums – the equivalent of Veruca Salt saying “But Daddy I want it” – whenever Congress didn’t give him what he wanted, so he acted unilaterally and without constitutional sanction, and fortunately he was slapped down quite a few times, and unanimously so, by the Supreme Court. Sadly, President Obama is not the only president to think that “urgent” matters give him unprecedented authority. Blame Congress both in its dithering and in its unwillingness to slap down presidents if you want – I certainly do – but it takes one to do the unconstitutional tango.

It doesn’t matter how important a given president thinks the issue is. There are clear mechanisms for pursuing a given action, and the president does not just get to act unilaterally in most cases just because Congress can’t agree on a given course. Sometimes executive orders are given under rightful circumstances. No one in their right mind should think we’ve reached such a crisis point of national security that the president should be able to go all Samantha on Bewitched, blink his eyes, and get what he wants.

And if you do think the president would be acting justly in this matter, I hope you take the same position when a future Democrat president declares that climate change is the moral equivalent of war and he can thus shut down all coal and natural gas plants on his say-so.