We need a bipartisan rejection of the national emergency

By Margaret White

For The Hill
March 3, 2019

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Lately in Washington it feels as though even the basic distinction between right and wrong is negotiable. But for the same reason Republicans were outraged when President Obama overstepped his constitutional powers, President Trump’s border wall-themed declaration of a national emergency violates both the spirit and letter of America’s time-honored separation of powers.

Whatever you think about the state of American border security, citizens need to recognize this emergency declaration for what it is—an affront to American democracy. Senators in both parties—not just those who oppose the wall—need to say enough is enough by voting for legislation moving through Congress to reject the national emergency. This is a moment to put country above party.

It’s worth understanding the history, because this isn’t the first time this sort of issue has emerged. The Constitutional Convention of 1787 was convened for what was, at root, a very simple, and uncomfortably familiar, problem: Congress was incompetent. Under the short-lived Articles of Confederation, the federal government did not have an executive branch, so legislators had no real ability to put their legislation into effect. When the governor of Massachusetts asked for help putting down the Shays Rebellion in 1786, Congress essentially shrugged its shoulders, unable to offer troops of its own.

The next year, as George Washington and the delegates to the Constitutional Convention began thinking through how to craft a better system of government, they endeavored to strike a new balance. They agreed generally that national authority needed to be strengthened—but they did not want to make the newly envisioned “president” a monarch. Rather, in their new Constitution they preserved Congress’ role as the arbiter of national policy, and the president was assigned the task of executing that policy.

Since then, Congress and the White House have regularly jockeyed for power. During the 19th century, Congress maintained the upper hand, and that’s why, with a few exceptions, we rarely pay much mind to presidents like Franklin Pierce and Millard Fillmore. But beginning with Theodore Roosevelt, the executive branch began to assert itself. Part of that was simply because the federal bureaucracy got too big for Congress to micromanage. Part of it had to do with the growing power of the presidential bully pulpit. Regardless, as historians often say, the march of the “imperial presidency” began.

Through much of the 20th century, the government retained a healthy balance. To read any of Robert Caro’s books on Washington in the 1950s and 1960s, you see the benefits of relationships formed across the aisle and between presidents and legislators of different parties. The fact that both sides had to work together to get things done produced a remarkably productive period in American politics right through the turn of the 21st century, a brief moment when Washington actually ran a budget surplus.

But since then, presidents have successively overstepped their bounds. President George W. Bush began issuing “signing statements” that seemed to suggest he could ignore provisions of laws the Congress had passed as comprehensive packages. President Barack Obama went a step further, establishing by fiat protections for undocumented people brought to the country illegally by their parents. President Trump has gone even further, declaring a national emergency when, in his own words, “I could do the wall over a longer period of time. I didn’t need to do this. But I’d rather do it much faster.”

This sort of provocation cannot stand. The Founders established checks and balances explicitly to head off this sort of imperial behavior. Beyond the substance of any of these decisions, White House attempts to usurp congressional power undermine the most fundamental tenet of American government, the balance of power.

There’s blame enough to go around. Recent presidents have grabbed at power largely because Congress abdicated its basic responsibility to craft bipartisan agreements. The challenges of immigration and border security have festered for years. Obama and Trump, like the American people, were frustrated. But let’s be clear: That is not an excuse.

The lesson from all of this is, first, that a dysfunctional Congress is not an excuse for a president to tear up the Constitution. Commanders-in-chief are elected to lead the nation’s legislators to a place where reasonable people on both sides of the aisle can embrace commonsense reforms—not rule by fiat when members of the House and Senate fail to bend to their will. Like President Obama, who controversially used executive orders to unilaterally implement immigration and environmental policies, President Trump has turned his back on the Constitution and put the country on a slippery slope where future presidents could abuse their power. Voting to reject the national emergency should have nothing to do with the wall—and everything to do with protecting our democracy.