As might be expected, House Speaker Nancy Pelosi (D-Calif.) and Senate Minority Leader Charles E. Schumer (D-N.Y.) released a joint statement blasting the move. “Declaring a national emergency would be a lawless act, a gross abuse of the power of the presidency and a desperate attempt to distract from the fact that President Trump broke his core promise to have Mexico pay for his wall,” they said. “It is yet another demonstration of President Trump’s naked contempt for the rule of law. This is not an emergency, and the president’s fear-mongering doesn’t make it one."
They added, “He couldn’t convince Mexico, the American people or their elected representatives to pay for his ineffective and expensive wall, so now he’s trying an end-run around Congress in a desperate attempt to put taxpayers on the hook for it. The Congress will defend our constitutional authorities.”
In this case, the blowback was bipartisan. Sen. Susan Collins (R-Maine) harshly criticized the move. (“Such a declaration would undermine the role of Congress and the appropriations process; it’s just not good policy. It also sets a bad precedent for future Presidents — both Democratic and Republican — who might seek to use this same maneuver to circumvent Congress to advance their policy goals. It is also of dubious constitutionality, and it will almost certainly be challenged in the courts.”) So did Sen. Marco Rubio (R-Fla.) (“no crisis justifies violating the Constitution”).
As one might expect, progressive groups like the ACLU and Common Cause panned the move. But so did Republicans for the Rule of Law. Its legal adviser, David Waller, wrote for the rock-ribbed Republican outlet Townhall:
There is no emergency; and the President’s renewed threat to declare one should cause us all — regardless of political persuasion — to think long and hard about the precedent such a declaration could create, should it somehow survive certain legal challenge. Could the military be directed to construct low-income housing because a future president declares economic inequality to be an ‘emergency?’ Could the Army Corps of Engineers be directed to build solar farms because climate change is declared an ‘emergency?’ The ‘what ifs’ are countless and troubling.
The nonpartisan Protect Democracy and the right-leaning Niskanen Center announced they’d file suit to stop the emergency declaration. (“There is no legal basis for issuing such a declaration and its issuance will injure specific parties and communities on the border, including the County of El Paso and the Border Network for Human Rights, who we will represent in litigation if it becomes necessary.”)
It speaks volumes about Trump’s self-absorption that in order to win back praise from right-wing cranks at Fox News and elsewhere, he is willing to hobble his own party, damage its future prospects and, oh yes, shred the Constitution. It’s once again all about Trump, Trump’s ego and Trump’s need for reaffirmation.
The Post reported that the declaration will provoke a blizzard of lawsuits: “They will file suit in numerous jurisdictions — certainly within the U.S. Court of Appeals for the 9th Circuit on the West Coast, in U.S. District Court in Washington and maybe even in New York.” Even his lawyers tell him the courts are likely to thwart his power grab.
Proceeding in the face of such warnings underscores how unhinged and power-hungry Trump has become. Yascha Mounk explains that “it is hard to imagine a clearer piece of evidence that he really does seek unconstitutional powers: If Trump’s past attacks on the legislature and the judiciary have, at times, felt like a drill, his intention to arrogate vast powers to himself under an utterly transparent pretext is the real deal.” He adds: “This is about as clear an attack on the constitutional order as political scientists could have dreamed up for some in-class exercise on the rise of dictatorship. If Republican senators like Mitt Romney and Ben Sasse are not willing to stand up to Trump’s cheap power grab now, they never will. And if the president’s many opponents cannot take to the streets to oppose his autocratic tendencies at this juncture, it is clear that they won’t do so until it’s far too late.”
Trump’s move is no political masterstroke. The wall and an emergency declaration to build one are hugely unpopular with voters. Within the GOP he is setting up his party for prolonged infighting. Instead of regrouping after his humiliating defeat and rallying Republicans, he has split them, creating a coalition of pro-Constitution Republicans and Democrats. (The first test may come if the House passes a resolution disallowing the emergency declaration, forcing the Senate to vote and Republicans to choose between loyalty to Trump and loyalty to the Constitution.)
Trump, aided and abetted by McConnell, reveals himself (again) to be deeply hostile to the Constitution. His party, in the hands of Trump supplicants like McConnell, forfeits its role as defenders of the rule of law, separation of powers and limited government. If there is a silver lining, it is that Trump is helping forge an impressive alliance of Republicans, Democrats and independents who are committed to thwarting his authoritarian impulses.