No wonder Trump is so frantic right now — “ranting and raving,” according to CNN. It’s not because he is worried about the welfare of the United States if undocumented immigration continues; as my colleague Michael Gerson notes, Trump appeared to be fine with immigration before he was against it. It’s because he is worried about his own reelection prospects.
Already Trump has declared a state of emergency so that he can spend money on a border wall that Congress refuses to appropriate. This is a direct violation of Article I, Section 9 of the Constitution: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”
Now Trump has forced out Secretary of Homeland Security Kirstjen Nielsen, reportedly because she would not countenance illegal measures such as denying migrants a chance to seek asylum. According to CNN’s Jake Tapper, Trump, while visiting California on Friday, “told border agents to not let migrants in. Tell them we don’t have the capacity, he said. If judges give you trouble, say, ‘Sorry, judge, I can’t do it. We don’t have the room.’ After the President left the room, agents sought further advice from their leaders, who told them they were not giving them that direction and if they did what the President said they would take on personal liability. You have to follow the law, they were told.” If this report is accurate, supervisors are telling their agents to disobey an unlawful presidential directive — an extraordinary and perhaps unprecedented occurrence that deserves greater attention.
Trump is mounting another assault on the law by leaving so many vacancies in his administration and relying on “acting” appointees. Article II, Section 2 of the Constitution: The president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.” Yet at the Departments of Interior, Defense and now Homeland Security, “acting” — i.e., unconfirmed — secretaries are in charge. Also “acting” are the United Nations ambassador and the director of the Office of Management and Budget.
In all, about 40 percent of the key Senate-confirmed positions in the government have not been filled by individuals who have been appointed and confirmed with the “Advice and Consent of the Senate.” At the Department of Homeland Security alone, there are 18 vacancies at the top, including secretary, deputy secretary, chief financial officer, two undersecretaries, assistant secretary for policy, assistant secretary for Immigration and Customs Enforcement and administrator of the Federal Emergency Management Agency. And with the announcement of Customs and Border Protection Commissioner Kevin McAleenan as DHS acting secretary, his position in Customs and Border Protection will be vacant as well.
Trump perceives a personal advantage in this chaos. “I like acting. It gives me more flexibility,” he said in January, presumably because unconfirmed appointees are more likely to be loyal to him personally rather than to the Congress or Constitution. This helps to explain why, nearly four months after Defense Secretary Jim Mattis resigned after Trump announced a decision to withdraw from Syria, the president has made no attempt to confirm a successor.
Trump has also signaled his intent to defy the law to keep his taxes secret. The acting White House chief of staff, Mick Mulvaney, vowed on Sunday that Democrats will “never” see the president’s tax returns, even though the Internal Revenue Code dictates that the Internal Revenue Service “shall” turn over any taxpayer’s returns upon the request of Congress’s tax-writing committees.
Meanwhile, Trump has changed his tune on special counsel Robert S. Mueller III’s report, from calling for its release to now suggesting that it should stay secret. While Attorney General William P. Barr vows to release the report within a week, he is suggesting that it may come with heavy redactions ostensibly designed to protect information including grand-jury testimony and classified information but likely designed to protect the president. (Barr could ask for authorization from a judge to release grand-jury material, and Congress already can receive classified information.) Barr preemptively attempted to clear Trump of obstruction-of-justice charges in his public summary released last month, after having gotten the job seemingly because he wrote a bizarre memorandum embracing the theory that the president cannot commit obstruction of justice through acts such as firing the FBI director. If that’s the case, we have a czar, not a president.
The real national emergency isn’t at the border. It’s in Washington. Trump is trashing the rule of law to stay in power — and the very same Republicans who excoriated President Barack Obama for his supposed misuse of executive power are meekly going along.