The American political conflict – ever more contentious, more complex, more constitutional in nature in the Donald Trump era – is now entering a new, uncharted phase.
By declaring an emergency to use money Congress didn’t appropriate to undertake border-wall construction Congress didn’t approve, Mr. Trump escalated the Washington struggle from a series of cold skirmishes to a hot war over the prerogatives of Congress in American civic life and the separation of powers in the U.S. system. He created new, complex layers of tension between Republicans and Democrats and – because some of his putative GOP allies have grave qualms about presidential overreach – between the executive branch and the legislative branch, where congressional efforts to terminate the emergency declaration already are under way.
These new strains in the U.S. body politic – growing out of the spending powers specifically delegated to the Congress and jealously guarded on Capitol Hill – may not be resolved until the 2020 presidential election unless they are addressed by the third branch of the country’s political system, the judiciary. Driving the looming legal challenge is California. On Sunday, the state’s Attorney-General, Xavier Becerra, said a lawsuit against Mr. Trump’s declaration was imminent.
“He’s hoping that he can count on a conservative court in the Supreme Court to give him a victory because he knows he’s going to lose all the way up the ladder of the courts – the federal court system,” Mr. Becerra told ABC News.
Indeed, the question of whether the President can transfer unappropriated funds to his border wall could swiftly reach the Supreme Court.
When he was a junior member of the Justice Department, John Roberts Jr., two decades from becoming chief justice, wrote to the esteemed U.S. Court of Appeals Justice Henry Friendly, one of his principal mentors. In that note, he asserted that the Ronald Reagan 1980s were a time “when so much that has been taken for granted for so long is being seriously reconsidered” – a notion Mr. Roberts might embrace again if this issue reaches the high court over which he now presides.
“This emergency order is constitutional abuse, but the courts are likely to put it on hold and not allow him to spend money the Congress hasn’t appropriated,” Laurence Tribe, a constitutional scholar at Harvard Law School, said in an interview, adding he believes the President also has violated the “emoluments” clause of the Constitution by “accepting all sorts of benefits, financial and otherwise.”
While the White House defended Mr. Trump’s decision by citing several presidential precedents, no chief executive has declared an emergency in bald defiance of an act of Congress – or for blatant political advantage. Over the weekend, the President, in a message to his political base, sent out a fundraising message that included the argument that “Nancy Pelosi and Democrats have not negotiated in good faith to fund a wall at our Southern Border, proving that obstruction is far more important to them than YOUR SAFETY.”
The nature and extent of presidential powers has been a fulcrum of debate since the Constitutional Convention of 1787, with presidents seeking to expand their reach throughout the nearly two and a half centuries that followed.
Many of the chief executives whom Mr. Trump’s most ardent critics revere were among the most aggressive interpreters of their powers.
Thomas Jefferson doubled the size of the United States with the Louisiana Purchase, a presidential power never contemplated by the drafters of the Constitution. Abraham Lincoln suspended the writ of habeas corpus and imposed martial law, defending these extraordinary actions as implicit in his war powers, acts that modern-day liberals would never accept from Richard Nixon or Mr. Trump. Theodore Roosevelt’s assertiveness in undertaking the Panama Canal was summarized in his remarkable comment, “I took the Canal Zone and let Congress debate.”
“Congress for many a decade has been delegating more and more responsibilities to the executive branch, and in some ways this is a culmination of the lack of congressional legislation and oversight,” said Dana Brown, a political scientist at Chatham University. “Political scholars have seen this coming for a long time. But this also looks like a great power grab by the executive branch that not even the congressional branch finds acceptable.”
Two recent U.S. presidents – men seldom paired in any way – have waded into the waters of unanticipated presidential powers. Barack Obama extended presidential powers with executive orders that Mr. Trump has criticized but then used as a pretext and precedent to his advantage. Mr. Nixon at the beginning of his second term assumed new powers over spending, but in the opposite way Mr. Trump is doing; by vastly expanding the concept of “impounding” funds, he didn’t spend unappropriated funds but instead refused to disperse $12-billion that Congress appropriated.
Some conservatives, critical of Mr. Obama’s executive orders (such as widening authorization for stem-cell research, environmental regulations and assistance to minors taken into the United States illegally) and reluctant to give further sanction to centralized authority in Washington, are wary of Mr. Trump’s initiative. One of them is Senator Marco Rubio, who lost the GOP presidential nomination to Mr. Trump but on occasion sides with the President.
“Constitutional conservatives should also worry if Mr. Trump wins in court,” the conservative editorial board of The Wall Street Journal said. “A precedent will be set that future presidents could use to impose their own priorities despite a reluctant Congress. If climate change will end life as we know it, why not impose part of the Green New Deal? No one believes more than we do that a president needs flexibility to move with dispatch in wartime. But the Constitution is also clear that Congress must appropriate money for public purposes.”
Mr. Trump’s actions grow out of his campaign pledges as well as his profile as a man of action rather than of reflection, a political rebel contemptuous of political conventions, a personally assertive figure unmindful of restraints on his behaviour and decisions.
Some of those decisions, however, have been stalled or overturned in the judiciary, a fate that may await this initiative but that may play into the 2020 Trump political strategy anyway.
“The courts will drop a guillotine on this,” Mr. Tribe said, “and then he can say he’s kept his campaign promise and it’s the courts standing in his way.”