Early in 2018, Democrats offered Donald Trump $25 billion for “border security” measures which included “the construction of physical barriers” in the text of the legislation. Trump turned it down flat after the Freedom Caucus and vivid fascist Stephen Miller got in his ear, and the government was shut down.
After the 2018 midterm elections changed the math, Democrats offered $1.6 billion and no wall, a substantially poorer offer for Trump. He rejected that one as well and shut down the government again, this time for 35 days. When the threat of airplanes falling out of the sky became manifest, Trump finally accepted a deal for $1.3 billion — $300 million less than he would have gotten before the most recent shutdown and some $23.7 billion less than he would have gotten in January 2018 – before announcing his preposterous emergency declaration in a Rose Garden performance that is now the worldwide gold standard for publicly spewed nonsense.
That, right there, is political weakness personified. The negotiation skills of this self-anointed master dealmaker would get laughed out of a high school Model U.N. conference. Between this profoundly unpopular emergency declaration fiasco and the gallons of blood in the water from the ongoing Mueller investigation, the president’s political standing is shrinking like a snowman in the Sahara.
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Political weakness is one thing, however, and legal weakness is another. As of this date, Trump and his contra-constitutional emergency have been sued by no less than 16 states: California, New York, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon and Virginia. Separate suits have also been brought by organizations like the ACLU, Citizens for Responsibility and Ethics in Washington (CREW), Public Citizen, the Center for Biological Diversity, Defenders of Wildlife and the Animal Legal Defense Fund.
Much has been made of Trump’s own Rose Garden words – “I didn’t need to do this, but I’d rather do it much faster” – which would seem to damn his “emergency” argument straight out of the starting gate, but the pressing question of legal standing must be addressed by the courts first. To wit: States like Connecticut and New York, which are hundreds of miles from the U.S.-Mexico border, must plausibly explain why they have standing in the case. (California, a border state, has no such problem.)
Presidents have invoked emergency-powers statutes nearly five dozen times since Congress enacted the National Emergencies Act of 1976, but never before has one been used to make an end-run around Congress after it rejected funding for a particular policy.
But as the debate over Mr. Trump’s action shifts to courtrooms, legal experts warned that its fate may turn less on such high constitutional principle and more on complex legal issues — from whether plaintiffs can establish that the case is properly before the courts, to how to interpret several statutes.
“Even though Trump’s political maneuver to get around an uncooperative Congress looks like it stretches the Constitution, the questions presented in court will raise ordinary and complicated issues of administrative law,” said Peter M. Shane, an Ohio State University law professor and co-author of a separation-of-powers casebook.
The original complaint, California et al. v. Trump et al., was filed in the U.S. District Court for the Northern District of California, which has proven to be no friend of the White House on cases ranging from immigration to the environment. The complaint importantly seeks an immediate preliminary injunction which would prohibit the Trump administration from acting on the declaration until the case is finally disposed of. This, if granted, would be a significant early victory for the plaintiffs.
The complaint goes on to make the argument for each of the states that are a party to the case: “Contrary to the will of Congress, the president has used the pretext of a manufactured ‘crisis’ of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction and law enforcement initiatives toward building a wall on the United States-Mexico border.”
Will this assertion be sufficient to convince the many judges this case will encounter before it is finally adjudicated? An eloquent argument can be made that Trump’s baseless emergency declaration manifestly harms all of us by shattering Article I of the Constitution, but that is likely too overbroad a contention to be legally satisfying. The states, in this matter, chose to underscore the brick-and-mortar harm the declaration specifically does to their safety and economic standing.
The history of suing a sitting president is replete with failed attempts. When the Supreme Court ruled in favor of Richard Nixon in a 1982 suit brought by a former Air Force employee, the concept of presidential immunity was virtually sealed in steel. Years later, the high court ruled in favor of Bill Clinton in the Paula Jones case by drawing a bright line between personal and presidential behavior.
Defeating this declaration in court will definitely be a hard hustle. Once the merits are established, if they are at all, the question will turn to the powers vested in a president by the Emergency Declarations Act, which are vast and not thoroughly defined. Trump and his legal team are confident that, ultimately, the scope of those powers will eventually win the day. Why? To make a bad pun, the White House believes the highest court in the land will be its trump card in the end.
California et al. v. Trump et al. will inevitably wend its way to the Supreme Court, and then we’re off to the races. Jurisprudence will collide with politics and institutional reputation in a way not seen since that court ruled unanimously against Nixon regarding his secret recordings.
Everyone, especially the folks in the Trump administration, assumes Justice Kavanaugh will rule in favor of the White House, because that’s why Trump nominated him in the first place. The same goes for Justice Gorsuch. Justice Thomas can be relied on to make a terrible ruling under virtually any circumstances, and Justice Alito will join him. That’s just straight politics.
It will be Chief Justice Roberts who will ultimately decide the fate of Trump’s emergency declaration. Roberts, a George W. Bush appointee, has been a reliable conservative vote on the court except for the times he hasn’t. On the Affordable Care Act (ACA), and more recently on cases regarding abortion and the death penalty, Roberts has sided with the more liberal wing of the court. On the other hand, Roberts sided with the conservative majority on Trump’s travel ban, evincing his seeming deference to decisions made under the banner of executive power.
Some point to these rulings as evidence that Roberts expects the lower courts to follow standing Supreme Court decisions. In the case of the ACA ruling, many believed Roberts’ decision was impacted by his desire to avoid having the court appear to be completely under the sway of Republican political whim. The chief justice has shown himself to be a somewhat unpredictable vote when the big chips hit the table. Few chips will be bigger than California v. Trump when it finally reaches his desk.
If California v. Trump ultimately fails in the courts — a distinct possibility we need to wrap our minds around right now — other options must be considered, either after the case is dismissed or on a parallel course. Congress, specifically the Senate, can probably summon enough votes to pass legislation to stop the declaration. This is thin gruel, as there almost certainly won’t be enough votes to override Trump’s inevitable veto unless the GOP undergoes the sort of sudden transformation that only comes with kissing frogs in a Grimm Brothers fairy tale.
Which brings us to impeachment, and the entirely viable argument that Trump’s emergency declaration was a prima facie impeachable offense. Article II of the impeachment document drafted to remove Nixon accused him of flagrantly abusing presidential power. “By defying Congress and unconstitutionally allocating federal monies for a project that Congress refused to fund, Trump has abused presidential power just as Judiciary Committee condemned almost 45 years ago,” writes Michael Conway, who served as counsel to the House Judiciary Committee during those proceedings. “Impeachment was the appropriate remedy then, as it is now.” Again, however, the current moral and political composition of Congress makes this option a very long reach as well.
The tea leaves are murky, to be sure. This situation is so brazenly binary regarding the separation of powers that Justice Roberts may very well choose to “defend the institution” again and swat the declaration down. Regardless, it will probably take years to resolve — Trump may soon be facing lawsuits from the butcher, the baker, the candlestick maker the way this is going — and in any event, a new president could easily cancel the declaration if properly motivated. The immediate ballgame is the injunction. If the plaintiffs get it granted, Trump will go Vesuvius, and — speaking entirely personally — I will roast marshmallows in the molten heat of his thwarted wrath.
As ever, the only certainty is time. This thoroughly unprecedented situation, legally speaking, is 40 miles of bad road. Get ready for another long, hot summer.