Monday, February 18, 2019

Unitary Executives, Imperial Presidents, National Emergencies and Partisan Realignment

Trump stands on giants of executive overreach
 When it comes to executive overreach, Trump is standing on the shoulders of giants. 
In light of President Trump's dubious declaration of a "National Emergency" to tap more of the Treasury than Congress will authorize, it's worth noting how far we have drifted from the Framer's intent for presidential power, congressional power of the purse, and the separation of powers in general.

As Gene Healy of the Cato Institute and author of The Cult of the Presidency noted:
"[The President's] constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers."
Oh wait. My bad. That quote was from Cato's 2006 White Paper "Power Surge: The Constitutional Record of George W. Bush." It was an essay I referenced when, as a blogging toddler in 2006, I was alarmed at the ever expanding Unitary Executive claims made by the Bush/Cheney administration.

Later, in 2008, I was gratified to see candidate Barack Obama run on a promise of reversing the executive overreach in the GWB administration and returning the United States to core constitutional principles:
"I taught constitutional law for ten years. I take the constitution very seriously. The biggest problem that we're facing right now has to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that's what I intend to reverse when I'm president of the United States of America." - Sen  Barack Obama - Townhall in Lancaster, PA, March 31, 2008
But I digress. Lets return to what the ACLU has to say about our President's overreach:
"... there is a very real danger that the administration will enshrine permanently within the law policies and practices that were widely considered extreme and unlawful during previous administrations. There is a real danger, in other words, that the administration will preside over the creation of a "new normal."
Oh wait. My bad. That paraphrased quote was from the 2010 ACLU Report "Establishing a New Normal" documenting the Obama administration extending, expanding and institutionalizing the executive branch overreach of the Bush/Cheney administration. The ACLU fears were borne out with later revelations of the Obama administration's widespread warrantless surveillance, continuing indefinite detentions, Presidential ordered drone kills, and of course Obama's infamous "phone and pen" executive orders on climate, immigration policy and the ever expanding regulations by presidential fiat.

The Cult of the Presidency
Abdication of congressional authority to the executive branch did not start with the last three administrations. It's part and parcel of a long term trend that has waxed and waned (mostly waxed) since the founding of the republic. It was Franklin Roosevelt that put the notion of POTUS as Cult Leader into high gear. Every president since has stood on the shoulders of previous executive power abusing giants. At least when FDR issued presidential edicts based on a National Emergency, there really was a national emergency (Great Depression, WWII). We also learned from FDR that even if there is a real national emergency, presidential orders can be misguided, racist,  immoral, unconstitutional and contradict American values.

This We The Internet TV mini-doc "Trump as Destiny: Why the Reality Show Presidency Was Inevitable" is instructive in this regard:

In recent decades executive branch aggrandizement accelerated during periods of unified one party rule, where partisan loyalty took precedence over institutional responsibility. Unified one party rule governments featured lapdog congresses functioning as little more than a presidential rubber stamp.  Intervening periods of divided government at least slowed the seemingly inevitable accretion of executive branch power by providing real oversight and forcing compromise legislation that constrained the worst impulses of the President's party. But divided government did little to restrain the presidential appetite for issuing executive orders to advance public policy by fiat.

The National Emergencies Act of 1976
The historical trend toward increasing presidential power is depressing, but is it inevitable? There are rare moments in our history where Congress says "enough is enough" and acts to reassert and reclaim their constitutional mandates from executive encroachment. But after nearly 200 years, it took a rogue President, eager to use and abuse executive power, to get Congress to put a leash on the President's power to act unilaterally on the basis of a national emergency. Sounds familiar.

Richard Nixon was a prolific proponent of executive power. Some examples include: Imposing wage and price controls on the economy, Unilaterally expanding the Viet Nam war into neighboring Cambodia;  Issuing an executive order invoking national security to stop the FBI from investigating Watergate, Declaring a national emergency to break a postal worker strike; Invoking executive privilege to obstruct congressional investigations of the White House and more.

In 1976, after President Nixon resigned under threat of impeachment, Congress finally put needed constraints on the power of the President to declare a National Emergency without Congressional consent.

The National Emergencies Act of 1976 was passed and signed into law by President Gerald Ford - one of the few presidents willing to sign a law limiting executive power. In the wake of President Trumps  recent "emergency" announcement NBC offered a succinct primer on the Act:
...Congress set out to limit the power after the Watergate scandal with the National Emergencies Act of 1976. The act scaled back the provisions of federal law that granted emergency authority to the president — then about 470 — and was intended to give lawmakers a way to check presidential power... 
Theoretically, but not likely. The National Emergencies Act originally held that Congress could repeal a presidential emergency declaration with a simple majority vote in both houses, but that was later amended because of a 1983 Supreme Court ruling involving separation of powers. As a result, both houses of Congress would have to act with a veto-proof supermajority, according to some experts."
Thanks to our brand spanking new divided government, we are going to see that vote. All of our legislators will be on the record. We know Speaker Pelosi will give every Representative in the People's House an opportunity to vote on the merits of Trump's "emergency". That will trigger an automatic vote in the Senate that cannot be blocked by Leader McConnell.  We will see how many Republican Senators put party loyalty ahead of institutional responsibility.

We don't need to dwell on President Trump's bizarre Rose Garden announcement. We don't need to speculate on the outcome of  the inevitable lawsuits the emergency declaration will spawn. We don't even need to rehash again the tiresome Republican and Democrat hypocrisy pas de deux as they shamelessly swap diametrically opposing views on executive overreach that they spouted a few short years ago. We need to focus on this vote. It's a vote we deserve. It's a vote we should note carefully. It's a vote we should remember in 2020.

Whither Limited Government Conservatives?
The vote is a referendum on the GOP. Will they stand up to protect the separation of powers, checks and balances as intended by the Framers of the Constitution? Will they vote to restore the institutional power of Congress to legislate and fund the government?  Will they sacrifice their oath to defend and protect the Constitution on the altar of a President's demand to increase funding for a dubious wall? Or will they relinquish the "Power of the Purse" to any future spurious Presidential declaration of a National Emergency? The principle and the precedent at risk with President Trump's emergency declaration is far more important than any possible benefit of another few billion dollars spent on a "wall" on the Southern border.

The GOP traditionally stood on the pillars of Limited Government, National Security, Fidelity to the words and intent of the Constitution and Conservative Social Values. With this President, Republican legislators have already abandoned the traditional conservative principles of fiscal responsibility, standing firm with our allies and holding the President to a higher moral standard. Protecting and defending the separation of powers mandated in the Constitution may be the last pillar to fall.

Partisan Realignment
Last year, I wrote a post citing a Philip Wallach (no relation) article outlining the key factors that led to the destruction of the Whigs, their replacement by the new Republican Party and speculating about how applicable that partisan realignment was to the current political environment. Philip concludes there are indeed parallels, but there is no polarizing “cross-cutting” moral issue today that mobilizes Americans with the same intense passion that slavery represented to Americans in the 1850s. It was slavery that finally ripped the Whigs apart and created the Republican Party.  PW concluded there was no comparable issue today that could precipitate a similar partisan realignment.

He wrote that article two years ago when there was an expectation that President Trump would "grow into the job."  I don't think anyone, outside of Trump Cult true believers,  hold that expectation now.  But that is not a "cross-cutting" moral issue. It's just a bad President. We've had those before.

But when we see a President who has no respect for the Constitution, and is actively working to subvert the separation of power, check and balance between the three co-equal branches of government enshrined in the Constitution, we may indeed be looking at a "cross cutting" moral issue that can precipitate the kind of partisan realignment that occurred in 1856.

If the GOP is not willing or able to excise the cancer of Trumpism from the Republican body politic, where are limited government, fiscal and foreign policy conservatives to go? None who believe in the word and intent of our Constitution can support or vote for the Republican Party if Donald Trump is again the nominee. They could, in good conscience, vote for Republican Senators who stand against the Trump "Emergency" declaration. But as far as the 2020 Presidential Election, they certainly have no home in either the Trumpist GOP, nor are they likely to find common cause among the increasingly irrational hard left trajectory of the Democratic Party.

There is another option. A new party, intent on destroying and replacing the GOP may be the only alternative for these voters.  Unlikely? Yes. But it happened before, and it could happen again.

Cross-Posted on Medium at Uniters Tribune

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