The Constitution Isn’t In Crisis—But the Border Still Is

By | 2019-03-16T12:55:38-07:00 March 16th, 2019|
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The Republican-controlled Senate on Thursday followed the lead of the Democratic House and voted to disapprove President Trump’s declaration of a national emergency at the southern border.

The success of the disapproval vote was expected in the House, where Democrats keep waving their arms and saying “It’s fine!” while women and children are violently sexually assaulted, the highest number of arrests at the border since 2008 are tallied, sanctuary cities are protecting murderers, and drug seizures are up at a time when drugs are killing more people than guns, car crashes, or HIV/AIDS ever did in a single year.

In the Republican Senate, however, what could have been a debate about the maelstrom at our southern border devolved into the gratuitous metaphorical beard stroking of quislings. “This is not an emergency!” proclaimed Senator Chuck Schumer (D-N.Y.). He went on,

This is a momentous day. The balance of power that the Founding Fathers put in place, so exquisitely designed, has served this nation extremely well for over two centuries. That balance of power was in large part motivated by the fear of an overreaching executive. The patriots had just fought King George. They knew what it was like to have an executive who would go too far, and they put in the precautions to make sure that didn’t happen . . . Today we are being asked, in a way that we haven’t been asked in decades, maybe even longer, to change that balance of power. And make no mistake about it—it will set an awful precedent for the future, no matter who is president.

Of course, gone unmentioned by Schumer and the rest of the Democrats in their flowery speeches about King George and tyranny was their loud applause for President Obama when he upset the separation of powers by creating law out of thin air with the Deferred Action for Childhood Arrivals (DACA) program. And, even more insidiously, grossly violating that separation of powers by making an unconstitutional appropriation from the Treasury to bail out insurance companies failing under Obamacare. (House Republicans took Obama to court over it and won.)

What Schumer and every other Democrat refuses to acknowledge is that President Trump is seeking to do something substantively different from these violations. The money he is using has already been appropriated by Congress. And the statutory authority—the Secure Fence Act of 2006—is already on the books, giving the executive branch broad discretion to build on the border. In other words, he is executing—as is his duty and within his powers to determine the means—a law that Congress passed.

If you were to believe Schumer that the exercise of the National Emergencies Act (NEA) by President Trump is unprecedented and turns the “balance of powers” on its head, then we must be in real trouble. Because the NEA has been used close to 60 times since its passage in 1976 (yes, ironically, it was Congress who gave the executive the authority they are now irate to see him use).

Moreover, no one in Congress has raised a single objection to the 31 national emergencies that are renewed annually. Neither did we hear a peep about the national emergency that President Trump extended for sanctions on Venezuela on March 5, or the one he extended on Iran last Tuesday.

According to Schumer, the NEA must only be used in times of “genuine emergency.” Well that’s interesting, because neither Schumer, all the Senate Democrats, nor the 12 Republican senators who voted with them, have raised an objection to the 31 annually renewed national emergencies that don’t seem to be, well, very pressing.

America is still under a national emergency declared by President Jimmy Carter in 1979 during the Iran Hostage crisis. Congress has had 40 years to debate it, but hasn’t addressed it once.

Other “genuine emergencies” that apparently require ongoing declarations include “the anchorage and movement of vessels around Cuba” and one related to Libyan dictator Muammar Gaddafi, who is dead. There are also still apparently emergencies necessitating U.S. involvement of some kind in Belarus, the Congo, Somalia, Yemen, Ukraine, South Sudan, and Burundi.

But, ”How dare Trump repurpose defense spending?!” screams Schumer, Senator Marco Rubio, and National Public Radio.

Oh, OK. Where was that same indignation when presidents used national emergencies to move defense spending around 18 times between 2001 and 2014? And for real crisis situations, too, like waterfront development in Bahrain, airplane parking lots in Iraq, and a courthouse in Guantanamo Bay, Cuba.

In other words, the outrage here? It’s incredibly (and mind-blowingly) selective.

That is not to say constitutionalism and the separation of powers are unimportant. They’re important. As Senator Mike Lee (R-Utah) pointed out, however, a proper objection to this national emergency declaration requires a much broader objection to the very law that allows it.

“At the end of the day,” Lee said from the Senate floor,

it is not the White House, it is not this president, it is not other presidents who are at fault for this; it is, in fact, Congress. Congress was the institution that chose voluntarily to relinquish this power. Congress, as an institution, adopted and enacted legislation that was so broad as to take basically all the guardrails off the legislative process.

Congress has wrapped itself around an axle of its own making. And, rather than do anything about it (like passing Lee’s bill to amend the National Emergencies Act and reassert congressional prerogatives over the president’s emergency powers), they’d rather treat this as a faux constitutional crisis for which they bear no responsibility.

Meanwhile, after all the angst, the finger pointing, and foot stomping, the television interviews, and the impassioned floor speeches by Democrats who apparently have just now discovered the separation of powers, the border—the cause of all this sturm und drang—remains at a crisis point, ignored and unaddressed.

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Photo Credit: Joe Raedle/Getty Images

About the Author:

Rachel Bovard
Rachel Bovard is senior director of policy at the Conservative Partnership Institute. Beginning in 2006, she served in both the House and Senate in various roles including as legislative director for Senator Rand Paul (R-Ky.) and policy director for the Senate Steering Committee under the successive chairmanships of Senator Pat Toomey (R-Penn.) and Senator Mike Lee (R-Utah), where she advised Committee members on strategy related to floor procedure and policy matters. In the House, she worked as senior legislative assistant to Congressman Donald Manzullo (R-Il.), and Congressman Ted Poe (R-Texas). She is the former director of policy services for the Heritage Foundation. Follow her on Twitter at @RachelBovard.