So now we’ve got our national emergency. It’s absolute bullshit. Everyone—including The Man Who Lost The Popular Vote himself—is under no illusions about this. It is two things: ego and politics. It’s about ego because Trump is pissed that he’s not getting what he wanted from Congress on the wall. And it’s about politics because he needs to mollify his base: the followers of Rush Limbaugh (who continued to maintain, just this week, that “Building the wall is fundamental.”), Ann Coulter, Sean Hannity, and Laura Ingraham, people who are really going to be pissed off that he couldn’t get what he wanted from Congress on the wall. Trump wants to get that wall. Trump needs to get that wall. And he’s willing to destroy our democracy in order to do it.
This bill must NOT be signed by @realDonaldTrump.
— Laura Ingraham (@IngrahamAngle) February 14, 2019
During the shutdown Trump floated the idea of declaring a national emergency, and in a post about a month ago I laid out the reasons why doing so were fraudulent in terms of the facts. I concluded that:
We have three branches of government because our founders believed that investing too much power in any one branch could, and likely would, lead to tyranny. If Trump does as he has threatened and manages to get away with it, he will not have ended a crisis, he will instead have plunged us into one as dangerous as any which our democracy has faced.
Additionally, Mark Sumner has revisited these issues in a terrific analysis—which includes a brilliant takedown of Senate Majority Leader Mitch McConnell’s role as an enabler in this disgrace—as have others, so I’m not going to do another overview of why this declaration of a national emergency is so dangerous to our constitutional democracy. In this post, I’d like to discuss some important historical examples of the executive branch, here and abroad, exercising authority to spend the people’s money, in the hope that doing so will bring some clarity to what Individual 1 is plotting here.
In my article last month I discussed how the democratic government in interwar Germany—known as Weimar, after the place where its Constitution was enacted—came to an end not because of Hitler but because of the emergency powers clause in that document. Article 48 allowed the elected president to essentially ignore the legislative branch and rule alone if, in his judgment, the situation was an “emergency.” Today I’d like to discuss another example, this one from even earlier in German history.
In 1861, Germany was not yet a unified state, but would become one in 1871 under the leadership of Prussia, whose king became the German emperor. Back in 1861, then-King William I sought significant changes to the Prussian military system, including a large jump in military spending that would allow him to increase the number of soldiers in peacetime by one-third, increase the number of new annual recruits by more than half, and maintain the recently increased term of service at three years (prior to 1856 it had been two years). Long story short, the legislature refused to go along with the executive branch’s numerous requests over the subsequent year to provide the increased funding.
In 1862 the king’s government, led by newly-appointed Minister President Otto von Bismarck, took a new approach. Bismarck announced that the government would simply bypass the legislature and do what it wanted. He laid out his case in one of the most famous, and important, speeches in world history. In the closing lines of the speech, Bismarck declared: “Not through speeches and majority decisions will the great questions of the day be decided … but by iron and blood.” That speech, and the ultimate success of the monarch in overriding the will of the legislature, snuffed out the progress Prussia had been making toward constitutional democracy and ensured that it—and the German Empire it founded a decade later—would keep power in the hands of the monarch, i.e., the executive branch. Although the parallels are not perfect, this should certainly ring a bell for Americans living under the Orange Julius Caesar.
One fundamental difference—at least in theory—between that historical scenario and ours is that we have an independent judiciary. The founders created three branches of government to prevent any one from accruing too much power. But divided government only works if the branches actually care about that goal.
In going along with Trump’s emergency declaration, Mitch McConnell has abdicated any responsibility when it comes to preventing a presidential dictatorship. Congress, due to the flawed nature of the National Emergencies Act, cannot stop Trump from declaring a national emergency unless two-thirds of the members of both houses of Congress agree. Therefore, it may well fall to the Supreme Court to save our democracy from Trump. In that case, we’ll see just how much of an “institutionalist” John Roberts really is.
The other historical example I want to discuss is one that took place quite recently, under President Barack Obama. In 2014, Republicans accused Obama of spending money that had not been authorized by Congress, namely the money being utilized to subsidize premiums for low-income Americans buying health insurance through Obamacare. In that case, the subsidies the Obama Administration implemented had been specifically authorized by Congress when it passed the Affordable Care Act. Republicans argued that a specific appropriation needed to be made and was not, while the Obama Administration argued that the problem lay in the poorly written language of that part of the law. Republicans sued Obama, and won an initial judgment before the case was ultimately settled. Although Trump technically ended them, the subsidies essentially continue today, albeit through a different mechanism. Once Trump took over, Republicans apparently lost interest in checking presidential authority on the matter.
There is a fundamental difference between that case and what Trump is doing here. Unlike Trump, Obama did not act by abusing the National Emergencies Act, or by abusing the kind of discretionary authority Trump is also currently citing as a basis for redirecting previously appropriated funds. Additionally, in the insurance premium subsidies case, Obama was clearly acting to carry out the wishes of Congress when it passed the ACA. And even so, a court found that his actions were not permissible. In authorizing billions of dollars to build his wall, Trump is clearly acting against the wishes of Congress, which specifically did not authorize those billions to build his wall.
Now that I’ve spent some time looking at examples from the past, let’s talk about the future. Democrats should absolutely hammer Trump over this national emergency declaration. Americans strongly oppose it—by a 2-1 margin, as numerous polls show. Plus, the American people also oppose building the wall itself, with or without a national emergency.
Running against a putative Trump dictatorship—as part of a larger argument about Individual 1’s abuse of power—is something that will resonate in particular with voters who may not be that attracted to other Democratic priorities, but who also do not want to see our Constitution torn to shreds. Democrats must be able to emphasize different points to different audiences.
Here’s what it comes down to: Declaring a national emergency where none exists in order to authorize an action that Congress specifically rejected is plunging our democracy into a crisis far greater than anything caused by people coming across our border without documentation—as serious a matter as that is.
Nancy Pelosi has made it clear that Republicans better be careful what they wish for: “I’m not advocating for any president doing an end run around Congress. I’m just saying that the Republicans should have some dismay about the door that they are opening, the threshold they are crossing.”
The Speaker of the House is right, on both counts. As for Trump, he cares only about his own power, and has no concern for anything that happens the day after he leaves office, let alone the long-term health of our democracy.