On Friday, Trump made a big show of vetoing the Congressional override of his national emergency. It was the usual Trump-fest, with the standard gang of lily-white sycophants in attendance, singing his praises, bringing to mind once again Charlie Sykes’s immortal description of Donald’s courtiers performing “the ritualized fluffing of their Orange God King”. As always, when he was done he held up his work to show teacher:
Among those in rapt attendance was new Attorney General William Barr, who, getting into the spirit of things, exclaimed that Trump’s declaration of the national emergency was certainly within the authority conferred by the National Emergencies Act, 1976, which is arguable, given how poorly the statute was drafted. He seemed to think this should be the end of the inquiry – does the Act say so, or not? Despite being the highest law officer in the land, which implies a certain level of legal acumen, and notwithstanding his recent re-taking of an oath to support and defend the Constitution, it seems to have eluded Barr that to the extent that the damnable law permits Trump to get around the Constitution’s allocation of spending power solely to Congress, it is itself unconstitutional. This is worrying. A fellow in Barr’s position should know that.
Which makes one wonder, who else should know that, yet doesn’t, and how many such folk now sit on the United States Supreme Court?
This shouldn’t matter. It shouldn’t be down to the courts to sort this out. What should happen is a Congressional override of Trump’s veto, and while they’re at it, the repeal or amendment of the statute that makes this argument possible in the first place – the National Emergencies Act is, after all, nothing more than an act of the legislature, and can be changed or done away with any time Congress chooses, just as fast as Congress likes. One thing they could do, were they inclined to restore some sanity, is add some sort of criteria under which a national emergency can be said to exist in the first place, rather than leaving it to the President to simply say it does. This sort of legal definitional drafting isn’t easy – trust me, I know whereof I speak on this score – but it’s not too hard to imagine setting pre-conditions that include urgency, seriousnous, absence of any other available legal process to address the problem, and limited duration. There’s guidance to be had out there, too, both in common law court decisions and the text of other nation’s laws. Here in Canada, we took a decent stab at it in our own Emergencies Act:
[A] national emergency is an urgent and critical situation of a temporary nature that seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada and that cannot be effectively dealt with under any other law of Canada.
Beauty! Not bad, eh? Beats nothing, that’s for sure! Congress take note!
But Congress won’t take note, and not just because it’s me saying it in an unread blog instead of somebody who both matters and gets listened to. Chuck Schumer and Nancy Pelosi could propose it, and could get it through the Democratic House, but even if it could then clear the Republican-controlled Senate, just as the recent rebuke of the current “emergency” did, we’re right back into dealing with a veto endorsed with that big, fat, jagged Trumpy signature. If we had the Republican votes to override a veto – it takes 2/3 of each chamber – amending the law could be a project for a rainy day, since Trump’s emergency would meanwhile be quashed, once and for all.
Two thirds, that’s what it takes to win the day, and that means 67 Senators (not to mention 290 members of the House, in which at present sit 235 Democrats). You might think the signs for a Republican revolt of the necessary scope are hopeful; a couple of days ago, much was made of the defection of twelve Republican Senators to vote with the Democrats in overturning Trump’s emergency. Golly! Twelve! That’s a lot! It sure feels like a lot, these days, but actually no it isn’t; there are 53 Republicans in the Senate, and by my arithmetic that means that fully 41 of them voted to allow Trump to gut the Constitution and curtail the constitutional prerogatives of Congress. In effect, they voted to neuter their own branch of government. Take a step back and think about that for a second. This is mad. Even when Donald moves to take away their own power and authority as granted by Article One of the Constitution, 41 Senate Republicans are so terrified of Donald’s power to have them “primaried” that they toe the line, and there can only be 33 such cowards if Trump’s veto is to be overridden.
It was even worse in the House. Only 13 of 199 Republicans voted with the Democrats to end Donald’s bogus emergency. An override would require a rare display of guts by 55 of the quavering Trump-toadies.
It always floors me. These guys (and if you’re talking about the GOP, it’s definitely guys) would rather acquiesce to authoritarianism and the destruction of their own institution than lose their damned seats. Why? I’ve been on about this before, and thought long and furiously in the interim, but I’m no closer to understanding it. Most of these Republican white men are millionaires with plenty of options, including, at the age and stage that so many of them have by now attained, plain old retirement. They could do like Boehner, and shake the dirt of D.C. from their shoes before going home to kick back and enjoy life, away from the relentless abuse of that jerk in the Oval. They could salvage some dignity. They could cease being Donald’s sad, battered spouses. I’m not asking for a stirring public declaration that they’d rather die on their feet than live on their knees; I merely ask them to quietly consider that instead of living on their knees, they could be sitting out back with a beer, tending to the BBQ. They could vote like they care about the American experiment, then go home, and maybe play a round of golf, collect some fees for sitting on a couple of Fortune 500 boards.
What in the world is so important about staying in Congress that you’d destroy Congress itself to do so?
I guess I’ll never know for sure. But since it is what it is, it would appear that notions of peeling off the extra Republicans needed to override Trump’s veto are nothing more than the delusions of dreamy liberals, dreaming their dreamy dreams in their dreamy liberal Cloud Cuckooland. Don’t get me wrong, I like it here in Cloud Cuckooland, it’s nice, but nothing I do from here seems to change anything outside the gates.
To the courts then! To the halls of justice! The incorruptible robed sages of the Federal bench will surely save the Republic!
Yeah. Well. It looks good in the 9th Circuit, I’ll grant you, but the thing is, all such court cases wind up eventually at the Supreme Court, unless they deny leave to appeal, which in this case seems a little unlikely, yes? So it’ll be up to them, and, well, you remember the Supreme Court, right? SCOTUS? Why sure, in fact if you’re a loyal reader you’ve probably digested one of my many prior screeds on the recent jurisprudence, like this cris de coeur from a few months back:
That’s them! I don’t know if you’ve been paying attention since Bush v. Gore, but any hope that this crew could be relied upon to reach a sound verdict based on principle and a sensible, purposive read of the Constitution, would seem to be sadly, indeed almost risibly, misguided. More Cloud Cuckooland stuff. True, Scalia isn’t there any more, bless his memory, so we don’t see so many impassioned defences of the execution of children, the maintenance of extra-legal gulags like the one in Gitmo, or the obvious Constitutional right to own any infantry weapon you can tote, not like in the old days, but there’s a couple of new right wing ringers on the team that are almost as true to the faith. Donald and Mitch saw to it, remember? The so-called “conservatives” form the majority, and by “conservative” I mean all-in for the rich white guys, whatever the issue – this crew would split 5/4 in favour of bringing back child labour, and probably slavery. When it comes to Trump’s executive authority, I reckon that this crew is chock full’o nuts just like William Barr.
Are you counting on this guy to rein in Trump’s executive power?
Or this guy?
One look at these pasty-faced idealogues and I can hear John Lennon ranting away in Gimme Some Truth:
I’m sick to death of seeing things from
Tight-lipped condescending mama’s little chauvinists
I’m sick and tired of hearing things from
Uptight short sided narrow minded hypocrites
Well no short-haired, yellow-bellied
Son of Tricky Dicky’s
Gonna mother-hubbard-soft-soap me
It’s sad, really, but actually these tight-lipped condescending narrow-minded short-haired sons of Tricky Dicky are going to mother-hubbard-soft-soap the lot of us, six ways from Sunday, and at the end of the day I’m worried that Trump may be flashing his beaming mug for the cameras, flush with triumph, because at the end of the day the Constitution is what they say it is. I know what they’d say if it was Obama exceeding his authority to, say, grant citizenship to the “Dreamers”, and I have a real feeling I know what they’ll say when instead it’s their beloved benefactor and appointer-in-chief, shredding the separation of powers so he can do a pointless thing to block a supposed invasion by brown folk.
Maybe they’ll surprise me? Chief Justice Roberts sometimes votes with the liberal minority… that could maybe happen this time…