By Tom Cushing
Edifice MexUploaded: Jan 9, 2019
Kenny Rogers was right: a good gambler knows when to hold ‘em … as well as when to fold ‘em. Take a lesson Mr. Trump.
After showing a weak hand in the early rounds of this new pokerfest – and very nearly making the smart fold-em move, the Prez went and held-em. He precipitated a costly, absurdist shutdown of the federal government, with no prospect of taking the pot. You can’t bluff or bluster your way to a win when the whole table knows you got nothin’.
He might try calling senior national security advisors Coulter and Limbaugh – they got him into this fine mess, any thoughts on how to get him out? Maybe promise to build the wall out of coal? Or as an aside, was the primary purpose to briefly distract the nation from DiJiTs’ increasingly dire legal everglades? There are, after all, no fewer than 17 ravenous investi-gators in that swamp, not counting the House Dems’ predations to-come.
But what of that “national emergency” card he claims to hold – the “absolute right” to declare one, and then build the wall with the military? Turns out that it’s a much better threat than an actual move, for several reasons.
o – First, what emergency? There does need to be one, after all. But it’s been two years since he took office, and three if you count the escalator speech that was functionally identical to last evening’s soliloquy. He had unified control of Congress during that whole period, but chose to place his political chips elsewhere, albeit to mediocre legislative results. Indeed, he hasn’t even expended all the funds he currently has for border security, including failure to hire some 2,000 authorized Border Patrol positions.
Further, the only people claiming ‘crisis’ are the Administration minions – no one else, including his own Border Patrol agents, who prioritize hiring first and have little use for ‘the wall.’ All nine borderlands Congressfolk, of both Parties, oppose Trump's wall. The numbers used in defense of a falling sky have been thoroughly debunked – on Fox News, no less! Elsewhere, the stats reflect business-as-usual on the southern frontier, with outcomes well below historic highs.
Crying ‘Wolf!’ - it just never ends well.
o - But what of the ‘humanitarian crisis’ at the border? Let’s consider the cruel irony that bursts out of this claim, as made by the very sociopathic authors of immigrant mal-treatment. Most of the human suffering that continues down south arises out of the Trumpian decision to hold asylum-seekers in-custody pending their hearings – months away. This despite the fact that the former, derisively-labeled catch-and-release program had a very high return compliance rate.
Also, consider where those $5B (Billion!) that the Pentagon must find in its couch cushions would go: will it build increased, uncaged sheltering capacity? Provide baseline medical treatment or psychological interventions for traumatized children? No, to address this humanitarian crisis it is proposed … to build a wall. Brilliant – just like all those former East Germans took refuge within the welcoming confines of the Berlin edition.
o – Second, an “absolute right” to bypass Congress? Such a thing is generally hard to come by in our system of check-and-balances, and it does not exist here. From the founding, there has been a deep suspicion of, and reluctance to allow domestic deployment of military personnel, for obvious reasons.
The Constitution is dubious, as was made clear in the 1953 "Youngstown Sheet and Tube" case. There, the Supreme Court invalidated President Truman’s emergency takeover of the steel industry (during the Korean War – at least he had a reasonable ‘crisis’ argument).
Justice Jackson’s concurring opinion in that case carries the most enduring weight, and its language is interesting and instructive. He writes about the difficulty of these cases:
“That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. … The tendency is strong to emphasize transient results - and lose sight of enduring consequences upon the balanced power structure of our Republic.'
"Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.”
Jackson went on to distinguish three situations:
1 – a broad Presidential discretion to declare emergencies exists where Congress has expressly delegated its power to the Executive Branch (natural disaster declarations are supported this way by statute);
2 – a middle ground where Congress has not acted, pro-or-con to delegate its power; and
3 – dramatically narrowed Presidential discretion where Congress expressly opposes it, or provides other means to deal with a serious policy matter. (the seizure in the 'Youngstown' case fit here and was invalidated, as Congress had provided other ways to deal with labor unrest, notably the cooling-off period mandated by the Taft-Hartley Act, for those keeping score at home).
This situation probably fits best under number 2: significant Presidential power, but far from “absolute” - as Mr. Nixon learned twenty years later.
It should also be noted that the Supreme Court is at its least partisan on issues of structural power – they take this stuff very seriously, as Jackson suggests above. A Conservative majority is often useful to a right-side President – but not always. It is far from a slam-dunk affirmance here, especially with Chief Justice Roberts soberly casting the possibly deciding vote (remember the ACA case?).
It’s quite likely that the Court majority would decline to permit the unilateral emergency declaration here, especially where it is being used so transparently as a "transient" bargaining ploy … versus the co-equal Congress. The Supremes generally look askance at sullying the Constitution by involving it in such low-brow political leverage-seeking – so there’s great risk for the Prez here.
o – Which is why Trump has repeatedly threatened this tactic – but Not played the card. The Dems hope he will - they've been inviting him to do so by opining that he can. Because once he does, he has to reopen the government – there’s no more issue about that. If the declaration is later invalidated by the courts – perhaps even quickly by a trial court with injunctive tools - he’s done. No wall. No other available hostages to take.
He really ought to cut his losses and fold. Sooner would be better. Both Kenny and Fred Rogers would approve of that smart, neighborly outcome.