The ACLU, like other litigants, alleges that the declaration is a charade and, in any event, the statute under which Trump claims authority to move money is inapplicable:
On its face, the declaration does not meet the requirements of the statutory authorization that the President invokes, 10 U.S.C. § 2808. That law, duly enacted by Congress, provides that the President may declare an emergency to deploy military construction funds “that are necessary to support such [emergency] use of the armed forces.” The declaration does not set forth any actual emergency, any use of the armed forces required to address such an emergency, or how a diversion of military construction funds is necessary to support the use of the armed forces of the United States. The President has also instructed his subordinates to divert additional sources of Departments of Defense and Treasury funds that Congress restricted for other purposes,in an effort to secure the appropriations that Congress denied him for the border wall.
Let a thousand lawsuits bloom! They serve as both a means of educating the public and of engaging the judicial branch in the task of constraining an out-of-control executive. The lawsuits should not, however, serve as the be-all and end-all of opposition to Trump’s declaration.
Congress has a legislative role in bringing forth a joint resolution. That is not a legal evaluation of the constitutionality of Trump’s move, although many members could conclude that Trump violated the Constitution. That determination is the job of the courts. Rather, Congress has a separate, political decision, the opportunity to conclude that this move is unwise, sets a bad precedent, deprives the troops and states (where construction projects are underway) of funds, and is based on a bald-faced lie that an emergency exists at all. Congress by resolution can also decide to stop another egregious misuse of the military, the politicization of troops to operate on American soil for partisan purposes.
Congress also has the powers of oversight and impeachment that could come into play. However, even Congress’s important role and the issues it could address should not obscure a larger point: Trump’s lying to the American people about a nonexistent emergency (which he acknowledged as much in his remarks!) and willingness to wreck our constitutional system to cover up a humiliating political loss should in and of itself be grounds for denying him a second term.
The declaration is not the only lie, nor the only abuse of power Trump has perpetrated. Nevertheless, it is among the most serious. What justification can there possibly be for Republicans to renominate him? They can get conservative judges from another GOP nominee. They can get deregulation or whatever else they want from any one of dozens of governors or senators who can run.
The vote for a resolution to disable the declaration amounts to dousing the flames. By contrast, renominating the president who set fire to the Constitution would make the GOP the party of constitutional arsonists. Republicans collectively would be saying that it’s important to us, more important than truth and fidelity to the Constitution, to have Trump for another term. Indeed, it would be an affirmative statement that the GOP prefers a liar and constitutional anarchist to every other potential candidate.
I would encourage Democrats to make the case that Trump has now disqualified himself from serving another term (whatever we find in the special counsel’s report). However, it is Republicans who need to decide whether the leader of their party should be the guy who paid hush money to women, lied to the voters about his business dealings with Russia, hired a bunch of Russian flunkies for his campaign and administration, continued to take foreign monies and use his office to enrich himself, and hired arguably the most incompetent and ethically challenged Cabinet in history.
On this they don’t get to say, “Well, the alternative is Hillary Clinton” or “If not Trump, we’ll get a socialist.” No. This is about their own nomination, not what happens in the general race, And in that regard, they cannot even make the expediency claim that Trump will be the best defense against a socialist. (Trump trails a whole slew of candidates.)
In sum, beyond the courts and beyond the resolution, the GOP has to decide if it wants a liar and power abuser, if Trump is the best representative of the party. Candidly, I’m beginning to think he is exactly what the GOP wants and perfectly embodies a nativist, authoritarian party that has come to resemble the right-wing governments popping up in places such as Hungary and Poland. I would, however, be ecstatic to be proved wrong.