One of the more revelatory aspects of the Trump era is how the national media, after taking an extended nap between 2009 and 2017, now are very worried about constitutional overreach by the executive branch. Presidential power-grabs—which were super cool just five years ago when Barack Obama threatened to use “a pen and a phone” to work around a Republican-controlled legislative branch—suddenly went out of style in January 2017. Obama needed to take unilateral action as a last resort, the media argued, because of those big, bad Republicans.
“Blocked for most of his presidency by Congress, Obama has sought to act however he could,” lamented the New York Times in August 2016. “In the process he created the kind of government neither he nor the Republicans wanted—one that depended on bureaucratic bulldozing rather than legislative transparency.”
But it was for our own good, insisted the Times. “An army of lawyers working under Obama’s authority has sought to restructure the nation’s health care and financial industries, limit pollution, bolster workplace protections and extend equal rights to minorities. Under Obama, the government has literally placed a higher value on human life.”
The former president often defended himself to sympathetic journalists. “I am not going to apologize for trying to do something while they’re doing nothing,” he boasted to George Stephanopoulos in a June 2014 interview on ABC News.
To what was Obama referring? Immigration. “The majority of the American people want to see immigration reform done. We had a bipartisan bill through the Senate, and you’re going to squawk if I try to fix some parts of it administratively that are within my authority while you are not doing anything?”
But now that Donald Trump in the White House and Democrats are in control of the House, the same rules do not apply.
Definitions Depend on Party Affiliation Now
After threatening to invoke the National Emergencies Act to fulfill his campaign pledge to build a wall between Mexico and the United States, the media, Democrats, and even some Republicans are crying foul. “I have the absolute right to declare a national emergency, the lawyers have so advised me,” Trump told reporters outside the White House on Thursday. “This is a tremendous crisis at the border.”
Trump is correct when he says that invoking the National Emergencies Act (NEA) is wholly within his presidential purview. Whether it’s a smart political move is a separate discussion, but there is little doubt he has the legal authority to stem the flow of illegal immigrants at our southern border via that statute. (John Eastman explained why last week at American Greatness.)
So, political foes are dispatching Trump to a presidential No Man’s Land, alternatively downplaying (or entirely ignoring) previous applications of the law and fabricating fictional scenarios about how future Democrats could exploit Trump’s alleged precedent—”whatifism,” if you will.
The most outlandish warning is that a Democratic president could declare climate change a national emergency and take any number of drastic measures, from shutting down coal plants to forcing the military to build wind turbines.
“If today, the national emergency is border security, tomorrow the national emergency might be climate change,” explained Sen. Marco Rubio (R-Fla.) on CNBC on Wednesday.
Perhaps these folks don’t remember that the Obama Administration declared war on carbon dioxide in 2009, paving the way to propose hundreds of billions in federal regulations with the alleged purpose of limiting carbon emissions; this included attempting to execute the Clean Power Plan, which the Supreme Court found so excessive and outside the authority of the executive branch that it took the highly unusual move of halting the EPA-imposed rule in 2016.
But if Americans now are expected to believe that the NEA suddenly is either unlawful or unconstitutional merely because Trump is president, and his action could portend a dark future of presidential authoritarianism, then the only reasonable step is to eliminate the law. Permanently.
More Than Four Decades of Emergencies
Now that the act is, for the first time in recent memory, an issue of public debate—consequently spawning a whole Twitterverse of experts—it’s fair to assess whether the 42-year-old law should exist at all. Currently we are under a state of 31 national emergencies, including one dating back to the Carter Administration. Another emergency declaration, imposed days after the 9/11 terror attacks, has been renewed on an annual basis.
According to a 2014 report by USA Today, “in his six years in office, President Obama has declared nine emergencies, allowed one to expire and extended 22 emergencies enacted by his predecessors.” This included proclaiming in 2009 that the flu was a national emergency, which allowed for waiving federal rules and set off a public frenzy for flu vaccines. Others deal with national security threats posed by Colombia, the Congo, and Yemen.
There is no doubt the law provides sweeping powers to the president. In a study published by the University of Michigan Journal of Law Reform in 2012, Patrick Thronson criticized the act as “[contrasting] sharply with the traditional conception of the United States as being a government of limited and enumerated powers.” Thronson detailed how the NEA activates “over 160 provisions of statutory law, dozens of presidential orders, and numerous other federal regulations.” This includes the use of the military. He also blasted Congress for being “oblivious” to the implications of ongoing and future national emergencies.
Applying the NEA—much like firing the FBI director or appointing an acting attorney general—is yet another presidential power that the media, Democrats, and anti-Trump Republicans would deny because the president happens to be Donald Trump. If protecting our southern border in order to stop a legitimate emergency that previous presidents also have identified as a crisis, then few, if any, events could surpass this ongoing humanitarian and security disaster that Congress refuses to solve.
If lawmakers on Capitol Hill suddenly are worried about how a Democratic president could abuse the NEA to impose drastic climate change policies or gun control, doesn’t it make sense to repeal the law now? If there is a legitimate and grave national emergency in the future, Congress and the president could address it together as need be.
Our laws are not capricious and subjective: they aren’t enforceable based on whether or not we like, or even trust, the person empowered with executing the law. Either let Trump exercise his legal authority and suffer any political consequences—or repeal the NEA. Congress can’t have it both ways.
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