The Real National Emergency
There’s a national emergency in America, all right, but it’s not on our southern border. It’s in the Oval Office, where an incompetent, ill-suited and immoral liar makes war on our democracy at home, and on our reputation and foreign-policy commitments abroad.
The countering good news is that Congress — at least the Democrats and a handful of Republicans there — have risen up to oppose President Trump’s naked Constitution-violating usurpation of its power of the purse — the explicit task of appropriating the money to keep the government running,
They have lined up ready to pass a resolution in both the House and Senate rejecting Trump’s bold power grab, though they so far lack the two-thirds majority required to override his announced intention to veto the bill.
Nevertheless, the rare pushback from those four GOP senators — Susan Collins of Maine, Lisa Murkowski of Alaska, Rand Paul of Kentucky and Thom Tillis of North Carolina — marks the first notable Republican break with their president in Congress. Until now, the Grand Old Party has supinely submitted to his every whim.
Paul, the most recent defector, said as early as last September: “Trump acts like he’s a king. He ignores the Constitution. He arrogantly says, ‘If Congress will not act, then I must.’ “ For himself, Paul has said: “I must literally lose my political soul if I decided to treat President Trump differently than President Obama,” who also invoked several national emergencies.
Tillis has warned that with such a precedent, a future Democratic president might enforce executive orders dealing with such favored issues as climate change and gun control.
Trump has confidently predicted that if or when the issue is raised in lower federal judicial bodies up to the Supreme Court, the 5-4 Republican majority there will sustain him. But Chief Justice John Roberts, appointed by Republican President George W. Bush, on some recent occasions has demonstrated independence, and could do so on such a clear-cut constitutional matter as Congress’s power of the purse.
Most notably, in 2012 Roberts cast the deciding vote in favor of President Barack Obama’s Affordable Care Act, the health insurance plan widely derided by Republicans as Obamacare that survived multiple GOP efforts to kill it.
In a recent biography of Roberts by veteran court watcher Joan Biskupic, reviewed in The Atlantic, she writes: “Roberts is the most interesting judicial conservative in long memory because he is both ideologically outspoken and willing to break with ideology in a matter of great political consequence. His response to the constitutional crisis that awaits (in the Mueller investigations of Trump) will define not just his legacy but the Supreme Court’s as well.”
The same could be said of Roberts’s potential position on Congress’s guaranteed role as appropriator and overseer of federal spending.
Even the two recent Trump appointees to the high court, Neal Gorsuch and Brett Kavanaugh, may find it difficult to repay their benefactor by voting to sustain him on this one most basic American element of the separation of powers. Voting to uphold the Trump veto on his national emergency for border security predictably would cause uproar in many judicial circles.
Biskupic writes that Roberts “harbored strong views on the limitations of congressional power, but hesitated to inject the Court into the ongoing health-care insurance crisis.” Since 2012, she goes on, “the right has distrusted him. Roberts’ shocking defection in that year’s Affordable Care Act case aroused charges and feeling of betrayal in a conservative movement increasingly bent on ideological purity….
“Even as he writes breathtaking conservative opinions, Roberts’ mere willingness to pay lip service to institutional values such as restraint and nonpartisanship now arouses suspicions,” the author avers. “Perhaps Roberts’s move was born of a concern for the business of health care. Perhaps he had worries about his on legitimacy and legacy of the Court. Perhaps his change of heart really arose from a new understanding of the congressional taxing power.”
In any event, there is no certainty now, should Trump’s highly controversial national emergency ordering construction of his vanity wall without Congress’s approval reach the Supreme Court, that the body will in the end roll over and allow it, in direct disregard of the founding fathers.
Jules Witcover’s latest book is “The American Vice Presidency: From Irrelevance to Power,” published by Smithsonian Books. You can respond to this column at email@example.com.