Trump Declares National Emergency. SCOTUS vs. POTUS fight looms.

On Friday morning, President Donald Trump declared a state of emergency. The issue of President Trump declaring a national emergency issue is a lose-lose for Republicans, and they know it.

So what happens now?

The Democratic-led House will act as I described previously (read that here), making things painful for the Republican-led Senate. The emergency declaration could survive if the Senate refuses to pass the cancellation of the emergency championed by the House, or if the Senate passes the cancellation and Trump vetoes it. Assuming, of course, there would be insufficient support in the Senate to override Trump’s veto. No matter how it plays out, Republicans will fight amongst themselves (and likely, fight ugly) to stake out on-the-record ownership of a position most Americans do not agree with.

If the declaration somehow survives legislative challenges, it will likely be litigated in court at least into 2020, so Trump gets nothing built now and likely very little built before election day. And the longer these legal challenges drag along, the weaker Trump’s position becomes to have declared that it was an energency or imminent threat which must be dealt with by an emergency declaration and not Congressional action. Remember, it was July 2018 when the Trump administration started separating families and caging children, and October 2018 when the migrant caravans allegedly grew by the hour and approached the level of threat somehwere around the Visigoths sacking of Rome in 410 A.D.

If the legal battles drag into 2020, and the problems started in early 2018 (or maybe, 2017), what make the issue suddenly “an emergency” other than the blue wave having washed away the Republican majority in the House of Representatives?

And speaking of the House (and the Speaker of the House), if President Trump does an end-run around the House and Speaker Pelosi, it will almost certainly be the end of bipartisan efforts on every issue for the remainder of Trump’s presidency. While that might seem like an empty threat in the era of divided governemnt, the last three months have seen signifciant bipartisan efforts beginning with passing and enacting the First Step Act (criminal justice reform). The Senate overwhelmingly passed the Natural Resources Management Act which the House has indicated will be passed with similar bipartisan support. And, the two sides worked to craft the deal to end the government shutdown AND to prevent another one. When looking at how little legislation was passed in the prior Congress when Republicans had full control, things seem to be more effective now than then despite the shift to split control.

To be clear, Speaker Pelosi will need to walk a fine line to ensure the Democrats effectively cripple the Trump/Republican agenda while not being so overt as to be deemed obstructionists.

But let’s say President Trump prevails? The cancellation of the emergency declaration either fails to pass the Senate or does and the Senate fails to override Trump’s eventual veto. The lower courts act quicky and in a manner which expedites the case to the Supreme Court before the end of the current term where the Justices split along ideologial lines 5-4 in favor of Trump having the authority to act even with such a weak rationale. Below is a chart showing the success rate of presidents when their administartion faced challenges which madeit all the way to the Supreme Court. I call it SCOTUS v. POTUS.

potus scotus

The peak success rate was Ronald Reagan’s at 75%. Barack Obama barely had a winning record, coming out on the better end of 50.5% of cases. And as the chart shows, each president since Reagan has won a lower percentage of cases than the president they replaced. Trump’s two appointments (Gorsuch and Kavanaugh) to the Court could be the deciding votes in his favor and could shift his winning percentage back on an upwards trajectory. In any case, it seems presidents usually win more than lose when challenged.

If Trump prevails and prevails quickly? Sure, some border wall gets built in 2020 and he likely holds campaign rallies at every construction location. And yes, Trump likely finds other things to be “emergencies” in the final 18 or so months of his presidency (assuming the Court rules by June). Bypassing Congress will be the new normal.

Then he still loses. And when the new Democratic president takes office in 2021. Then what?

Congresswoman Cathy McMorris Rodgers (R-WA) already suggested a possible consequence of Trump’s action.


Senator Susan Collins (R-ME) weighed in as well.

“It’s a mistake on the president’s part. I also believe that it will be challenged in court. It undermines the role of Congress and the appropriations process.”

As did Senator Rand Paul (R-KY). Paul said he is not “for running the government by emergency, nor spending money. The Constitution’s pretty clear: Spending originates and is directed by Congress, So I’m not really for it.”

Senator Marco Rubio added in a statement, “We have a crisis at our southern border, but no crisis justifies violating the Constitution. Today’s national emergency is border security. But a future president may use this exact same tactic to impose the Green New Deal. I will wait to see what statutory or constitutional power the President relies on to justify such a declaration before making any definitive statement. But I am skeptical it will be something I can support.”

Senator John Cornyn (R-TX) had previously gone on record when Trump first began threatening to declare an emergency. He said, “The whole idea that presidents — whether it’s President Trump, President Warren or President Sanders — can declare an emergency and somehow usurp the separation of powers and get into the business of appropriating money for specific projects without Congress being involved, is a serious constitutional question.”

Republicans were not alone in offering their warnings to President Trump.

Senate Minority Leader Chuck Schumer (D-NY) remarked, “If President Trump decides to go forward with a disaster declaration, he’ll be making a tremendous mistake.”

House Speaker Nancy Pelosi made sure Trump did not miss the message hidden in Schumer’s comment when she added“Just think of what a president with different values can present to the American people.”

See, here’s the thing. If Trump’s national emergency passes Supreme Court muster, how could the Court not agree that gun violence (a much bigger threat to Americans everywhere and with higher costs in terms of dollars and lost lives) is not a national emergency when a Democratic president declares it to be so? Or healthcare? It is the largest expenditure the government has besides the military and costs are spiraling out of control. Poverty. Climate change. Voting rights. Infrastructure. Or how about the national debt? If the next president were to declare the debt a national emergecy, would the president then be able to control the nation’s wallet (instead of Congress) to address that emergency?

The Supreme Court blocked much of Franklin Roosevelt’s New Deal as an overreach of presidential authority and a usurping of the roles and privileges afforded to Congress under the Constitution.

Do they real want to set a new precedent that presidents are effectively omnipotent?

The bottom line is this:

The electoral map favors Democrats in presidential elections. Prior to Donald Tump’s victory, the “blue wall” states had gone for the Democratic candidate six elections running. Trump carried them by a combined 70,000 votes. A Republican nominee would need to win Ohio (no Republican has been elected without it) and likely repeat Trump’s success in at least two of Pennsylvania, Michigan, or Wisconsin. All went heavily blue in 2018 after narrowly supporting Trump in 2016. And as areas of the southwest (Texas, Arizona, New Mexico, Colorado) become more favorable targets for Democrats, Republicans likely have faced the facts that their chances of holding the White House will only occur every 3-4 terms when the electorate really needs a change. But Republicans think that through gerrymandering, and census manipulating, and voter-roll purges (with accompnaying felon bans) they can keep the House and Senate competetive and liekly never again be where the Democrats were from 2017-2019, totally helpless. But if President Trump succeeds and Congress becomes irrelevant instead of an equal branch, Republicans know the will be stuck operating in the shadow of a Democratic president capable of ruling by executive order and emergency declaration?

The Republicans know they risk sacrificing EVERYTHING just so Trump can fulfill a campaign promise that will likely cost him (and many of them) re-election in 2020.

They know that is a lose-lose. Worse, only the Supreme Court majority Republicans stole (and handed to a Republican president who may have stolen the election) can now prevent that Republican president from destroying the future of the Republican party.

Karma is a vengeful bitch, and this is what happens when one party governs as if the rules do not apply and like they will never be the party out of power.



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