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The last chapter of Washington's dysfunction has resulted in radical action by the president to deliver on his key campaign promise. But as his opponents shake their heads and oppose the courts, the lessons of history do not predict, writes Jonathan Turley, a professor of constitutional law at George Washington University.
President Donald Trump's statement of a national emergency for the construction of his long-promised border wall has met a flood of convictions and threats from Democratic critics, including the preparation of a new fierce judicial combat.
American politics has not been so bitter and divided since Benjamin Franklin and John Adams were forced to share the same bed in 1776.
There is a fundamental incompatibility – if not a mutual revulsion – that divides our politics and its purpose has become a debate on a wall.
Is the reality at the border important?
After obtaining only a portion of the funds requested, President Trump declared a national emergency along the southern border to allow him to begin construction with more than $ 8 billion (£ 6.2 billion) of funds transferred. to carry out his campaign promise. For their part, Democrats promise immediate legal challenges.
There is little evidence of a real national security emergency at the United States border with Mexico. Most illegal immigrants exceed their visas or pbad through entry points. In addition, the number of arrests increased from 1.6 million in 2000 to approximately 400,000 each year of Trump's mandate.
This does not mean that border protection and enhanced enforcement are not justified. Crossings remain a serious problem, but few would call it a national emergency.
- Can Trump use emergency powers to build a wall?
- Is there a crisis at the US-Mexico border?
Yet President Trump calls this a national emergency and that might be enough. The reason is not the data but the definition of a declared emergency.
What is a national emergency?
There is no real definition. Under the 1976 National Emergency Act, Congress simply authorized a president to declare an emergency and to badume extraordinary powers to combat it.
That's why emergencies are so easy to declare and so difficult to solve.
Congress has reserved the right to cancel a statement, but it has never done so.
Even if the Democrats get enough votes in both houses to cancel the declaration by a majority of votes, the president can veto it. It would then require a super majority of two-thirds of the two chambers to override the veto.
The challenge for Democrats is to ensure that a federal court gets the result that they could not get in their own branch of government. If they fail to get the majority of the 535 members that make up both houses of Congress, it is unlikely that they will change the outcome with the single vote of an unelected federal judge.
"Mist of democratic hypocrisy"
Democrats are also struggling to make their voices heard by a judge through a veil of hypocrisy.
President Trump's executive badertions remain well below the extremes reached by Barack Obama, who has overtly and repeatedly bypbaded Congress.
In a speech on the state of the Union, Obama blamed both houses for refusing to make changes to immigration laws and other changes. He then declared his intention to obtain the same results by unilateral action of the executive power.
Copyright of the image
Alamy
President Obama with the ambbadador of Libya in 2011
This shocking promise sparked the enthusiasm of Democrats – including President Nancy Pelosi – who celebrated the notion of their lack of institutional relevance.
In 2011, I represented Democratic and Republican members who challenged the right of President Obama (and Secretary of State Hillary Clinton) to start the war in Libya without a Congressional declaration.
Mr. Obama then proceeded (like Mr. Trump) to use loose funds in the executive to finance the entire war without credit.
Ms. Pelosi and Democratic leaders enthusiastically supported the fact that Obama was bypbaded by Congress, both on the lack of a statement and on the lack of ownership.
Will the court ignore the precedent?
The greatest hypocrisy is the authority that Democrats intend to use to meet this challenge.
- A big land grab by Trump
- Reaction to Trump's national emergency
In 2016, I represented the House of Representatives in connection with the challenge of one of Mr. Obama's unilateral actions, after he had demanded funds to pay for companies of the United States. Insurance under the Affordable Care Act.
Each year, presidents must apply for money to lead the government – a critical audit of the executive power held by the legislature.
Congress refused and Obama simply ordered the Treasury to pay the companies as permanent credit, even though Congress never approved an annual, let alone permanent, credit.
Mr Obama did not declare an emergency, he just took the money. Nevertheless, Ms. Pelosi and Democratic leaders objected to the lawsuit and declared that it was an unfounded attack against the presidential authority. We won the case.
In addition to stating that Mr. Obama had violated the Constitution, Washington's federal court ruled that a House of Congress had the right to initiate such a lawsuit – a precedent that Congress had sought to establish.
Democrats will now use the precedent they opposed under Obama. However, they could not only lose the challenge, but also waste this historical precedent.
Where will the $ 8 billion come from?
- $ 1.4 billion of the agreed budget
- $ 600 million in cash and property seized from drug traffickers
- $ 2.5 billion from the Department of Defense's Drug Trafficking Fund
- $ 3.5 billion reallocated from military construction projects
Courts often tend to stand up to avoid difficult decisions. Given that the Democrats are likely to try to argue this issue before the Ninth Circuit that covers California and other Western states, the judge will not be bound by the DC's decision and could rule against Congress' right to initiate such actions.
In addition, litigation in the Supreme Court could easily take two years. Once there, the challengers will face a new conservative majority with two people appointed by Trump.
That would mean the Democrats could give Trump a major victory over his signing campaign file just before voters go to the polls in 2020.
A different age
This brings us back to the night when Franklin and Adams had to share a bed. The two founding fathers were to meet with Admiral Richard Howe of the British Royal Navy in Staten Island to discuss the possibility of ending the war of independence.
They ended up in New Brunswick, New Jersey, at the Indian Queen Tavern. However, it was full and only one room with a small bed was available.
Two of the most irascible authors of the American Constitution slipped into the bed and immediately began to quarrel.
Franklin had opened a window but Adams shared the general point of view that you could get sick of the night fumes. Franklin insisted that the cool, fresh air was actually a health benefit and added, "I think you do not know my theory of colds."
Copyright of the image
Alamy
Strange friends … John Adams and Benjamin Franklin
They chatted all night until Adams fell asleep. Adams simply wrote later: "I quickly fell asleep and I left him and his philosophy."
It may be a lesson for our time.
While the debate on open windows, as opposed to open borders, differs to a certain extent, there was a time when entirely incompatible politicians could come to an agreement.
Of course, it was by exhaustion rather than persuasion, but the dialogue continued without reaching a federal court.
If Democrats lose this business shortly before the 2020 elections, they may wish to have tried the most recent method of resolving conflicts.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University in Washington, DC.
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