House Speaker Nancy Pelosi (D-Calif.) on Wednesday set the wheels in motion to lift President Trump’s contrived declaration of emergency. In a “Dear Colleague” letter, she writes, “President Trump’s emergency declaration proclamation undermines the separation of powers and Congress’s power of the purse, a power exclusively reserved by the text of the Constitution to the first branch of government, the Legislative branch, a branch co-equal to the Executive.”
She then invites members to sign onto a resolution, “reporting it out of committee within 15 calendar days and considering it on the Floor within 3 calendar days following that," whereupon it will go to the Senate.
She concludes: “All Members take an oath of office to support and defend the Constitution. The President’s decision to go outside the bounds of the law to try to get what he failed to achieve in the constitutional legislative process violates the Constitution and must be terminated. We have a solemn responsibility to uphold the Constitution, and defend our system of checks and balances against the President’s assault.”
It will be interesting to see which Republicans will abandon Trump and live up to their oaths. Perhaps members of the Armed Services Committee will decide that they cannot countenance the confiscation of funds they directed to military construction projects. Maybe members of the Judiciary Committee who railed at President Barack Obama for using executive action to protect “dreamers” will decide that they need to be intellectually consistent; a president of either party must abide by the separation of powers. We should also look to the Freedom Caucus, which claims to be oh so very concerned about the rule of law and limits on executive power.
If members need any further instruction on the constitutional issues at play, they might look to the lawsuit filed in Texas in the Fifth Circuit, not in the 9th Circuit, which is routinely vilified by the right. A news release from Protect Democracy and the Niskanen Center, which are bringing the suit on behalf of the county of El Paso and the Border Network for Human Rights, explains that this is truly a bipartisan effort:
The legal team includes: former Acting Attorney General Stuart Gerson, who served as a top aide to President George H.W. Bush; Harvard Law Professor Laurence Tribe, one of the nation’s leading constitutional law experts who represented Al Gore in Bush v. Gore; Protect Democracy, a nonpartisan nonprofit dedicated to preventing the United States from declining into a more authoritarian form of government and which includes both liberals and conservatives; the Niskanen Center, a center-right policy think tank; and the law firm Willkie Farr & Gallagher LLP.
The lawsuit seeks an injunction to block the President’s emergency declaration from taking effect. The lawsuit lays out why the President’s actions are not supported by the law, violate numerous provisions of the Constitution and U.S. Code, and have immediately inflicted injuries on El Paso County and the Border Network for Human Rights.
In other words, there are respected Republican legal scholars foursquare behind the suit. This should not be a partisan affair either in court or in Congress.
In addition to the separation-of-power arguments raised in other lawsuits, this suit also focuses on the misuse of the military to create a pretext for Trump’s power grab. It alleges that in the absence of a true emergency, the use of troops in this fashion violates long-standing laws limiting the deployment of the military for domestic purposes.
Republican lawmakers from Texas might want to take a look at the alleged injuries to El Paso, which remains a safe county. The mere issuance of the declaration and the president’s slandering of the county has caused damage to its reputation, businesses and tourism and will require expenditure of funds to address the land grab.
Filing the lawsuit in Texas reflects the litigants’ confidence that Texas federal court judges know full well that there is no border crisis and will jealously guard individuals’ constitutional protections. The same circuit that ruled against the Deferred Action for Childhood Arrivals to prevent executive overreach seems the ideal venue to apply those same restraints to the current president.
If Texas federal court judges recognize that the emergency is a farce and decide to rebuke executive overreach, Sens. John Cornyn (R-Tex.) and Ted Cruz (R-Tex.) and Texas’s House delegation will look mighty weak knuckling under to Trump rather than defending the Constitution and the rights and interests of their own state.
Trump’s move, unsurprisingly, has turned out to be a dud with voters. It might set records for the most unfavorable rulings from the most courts. Now, Republican lawmakers will have to decide whether they want to go down with the sinking ship or seek higher ground consistent with their oaths. Pelosi will force them to vote, and thereby expose the true colors of Trump’s GOP.