3 Comments on Emergency!

Today’s unpopular and probably incorrect political opinion: the fact that Our Only President has declared a state of emergency and is diverting funds that were allocated for construction of military bases to construction of a stupid and harmful border wall is terrible but not that bad.

Let me start with this—it’s terrible, probably unlawful, possibly unconstitutional, and the legislature should (and can) put a stop to it, whether the courts do or not. It’s bad policy, it’s bad procedure, it’s bad precedent. There is nothing good about it. Our Only President is very bad at his job, a very bad person, and supports very bad policy—and it certainly appears that he is getting worse in all of those respects. It’s bad, bad, bad.

But I mean, there are a lot of bad things going on. Our Only President threatens the families of people who are cooperating with an investigation, lies constantly and without regard to the effects of the lies, leaves cabinet positions open rather than nominate candidates to be confirmed by the Senate, uses his office to enrich himself and his family, alienates our allies, encourages violence among civilians and officers of the state, and has caused permanent trauma to thousands of people (including children) by separating them from their families, keeping them in concentration camps, and preventing their legal applications for asylum. He blocked millions of people from even entering the United States, causing massive problems for individuals, families, organizations and airports. He forced the government to shut down a large number of offices and duties for a month, causing economic distress to millions of people and endangering the entire nation’s food supply. The list is, alas, too large to even contemplate.

So in that context, how bad is this emergency declaration?

It depends, of course, on what happens next. One thing I don’t think will happen is the construction of a wall across the southern border. As I’ve said before, I think that it would hurt the US even to say we’re building a border wall, it would hurt the US more to build a mile of it, and more to build a hundred miles, even if we don’t fence off the entire border. But there are different levels of harm. And while I have learned the folly of making predictions, especially about the future, there are some things that seem obvious. The first thing will of course be the lawsuits, and while those are dragging through, the legislature will act, probably a quick House vote followed by a slow process in the Senate, which will all be very bad politically for Our Only President. And then, of course, there’s land acquisition and the lawsuits over that, the environmental impact problems and those associated lawsuits, and of course the pushback from the military. And then, of course, there’s the question of management—the kind of skillful management that gets things done more quickly, that dodges delays and keeps tight control over budgets and expenditures is not a prominent feature of this Administration. The chances of more than a short stretch of wall being built along the border within the next twenty-two months are seem quite slim to me. Again, even building a short stretch of border wall (under the circumstances, extending the barriers that already exist) will hurt the country in ways that are probably lasting. It’s important to keep that in mind, but it’s also important to distinguish between that and the possibility of an actual border wall of the kind Our Only President promised so often during the campaign.

Then there’s the precedent set by the declaration itself—this is a Bad Thing, and of course it’s possible that future Presidents will attempt to make use of it. Although if I’m right that the border wall doesn’t actually get built within two years, I don’t know that it will seem all that inviting an option for making policy happen. But more important… OK, this is again a prediction about the future, which is foolish and silly and whatnot, but it seems to me that it’s unlikely that Our Only President’s innovations will be seen as legitimate precedents that remove otherwise-powerful constraints on future Presidents.

I’ll break down my thinking. It seems to me that there are two likelihoods for how this President is viewed from the near future. The most likely (I think optimistically) is that within five years or so, he will be seen as an aberration, a fundamentally illegitimate crook who somehow got hold of the White House keys and made a mess in it. That, like Richard Nixon, there will be a core of partisans who will support him right up until the end, and then after he is disgraced there will be little memory of that at all, and his ouster will quickly be remembered as bipartisan and evenhanded. It’s even possible that, like Richard Nixon, he will live long enough to outlast his disgrace, although I doubt it. At any rate, if this happens, then for any President to claim that declaring a national emergency as an end-run around the legislature is based on the Border Wall precedent is incredibly unlikely. They may declare emergencies in defiance of Congress anyway, but it won’t matter that it was done before.

And of course the other possibility is the really scary one, that Our Only President will still be President in five years, or that someone will be the head of government who is an admirer and follower of his. And in that sort of situation… well, in that sort of situation, the constraints on Presidential authority that we have always imagined existed will simply not exist, and it will not really matter whether there is a precedent or not. That future President will not care about the forms of executive orders or emergency declarations, or whether the Supreme Court has reservations, or whether the precedents are convincing. And yes, of course this declaration is a step toward that terrifying future, it is one step in a massive march—and while I wouldn’t call it a baby step, quite, I think that it’s no more terrifying in itself than the choice to govern without a confirmed Secretary of Defense—and much less worrying than the family separations at the border have been and probably continue to be.

Tolerabimus quod tolerare debemus,

3 thoughts on “Emergency!

  1. Chris Cobb

    A key factor in how this “National Emergency” will play as precedent is what the Senate does; that will be nearly as important as on what the courts do, maybe more so, since it could preempt the courts’ involvement. If the Senate decisively rebukes Trump on this action, then little effective precedent will be set. However, if the Senate upholds the emergency declaration, that would (as Nancy Pelosi has implied) encourage a Democratic President, backed by a solid House Democratic majority but blocked by a Republican Senate elected by an absolute minority of the American people, to use the National Emergency framework to steamroll Senate opposition, and they would have strong justification for doing so, especially in the face of a much more authentic national emergency.

    From a pragmatic political perspective, of course, one reason to emphasize How Very Bad is this bogus emergency declaration is to maximize the pressure on Republican senators to break with Trump and to ensure that, if they fail to do so, they pay a high political price.

    From the standpoint of human immiseration, this declaration is probably not in the top 5 Trump Horrors, but from the standpoint of damaging the political norms on which our system depends, I think it is his most serious attack on representative democracy to date.

    A final thought is that unless Trump is ousted by being impeached in the House and then convicted in the Senate, he is not going to be viewed as “aberration, a fundamentally illegitimate crook who somehow got hold of the White House keys and made a mess in it.” The factors that propelled Trump to power–Russian espionage & other criminal actions that violated the integrity of the election, political corruption, and the vile racist and sexist underbelly of the Republican Party–will continue to be serious threats to the well-being of the United States after Trump is gone. The women and people of color who have shown their strength as the backbone of the Democratic coalition are not going to just going to breathe a sigh of relief and quietly withdraw from politics. The national intelligence complex that has witnessed the magnitude of Trump’s betrayal of U.S. interests is not going to let the participants in a criminal conspiracy against the integrity of U.S. elections, who used their ill-gotten power to implement horrific racist policies, slough off their culpability with the idea that Trump “somehow” got elected and now that he’s gone, our problems are solved. Trump is a symptom, not a cause, and I expect that will be understood even more clearly five years from now than it is today.

    1. Vardibidian Post author

      I think the big question of the next few years is whether, and how, the other Party breaks with Our Only President. I think they will, and I think they will break with him decisively, but I could surely be wrong. I am much less optimistic about the Party breaking with Trumpism, that is, with a fundamentally corrupt and autocratic notion of power and politics, over the next few years. I’m not just talking about racism and misogyny (which I am not at all sanguine about sweeping back into the darker corners of our public politics) but about what is acceptable and legitimate use of power, and where legitimacy comes from. Well, we’ll see.

      But yes—the election of Trump is a symptom of real problems that his departure will not address. The concept of using the executives Emergency powers in what is, after all, a political emergency, is a dangerous precedent. I work under the assumption that it will neither get a wall built nor solve O.O.P.’s political emergency… but if either of those things actually happen, then it’s because we are, as a nation, in much worse shape than I (optimistically) think now.


  2. Chaos

    Yeah, so the thing about national emergencies is that they mostly seem to accrue. I’ve been scratching my head about national emergencies for a couple of years now in the context of Project Rage Donate, and thanks to this new business, there’s been a bunch of higher-quality reporting about exactly what the currently-active ones are. I keep meaning to sort this out and post coherently about it somewhere, but assuming that’s not happening any time soon, here’s my list of useful links i found in case anyone else is curious:

    * https://www.brennancenter.org/sites/default/files/analysis/NEA%20Declarations.pdf
    * https://www.washingtonpost.com/graphics/2019/politics/current-national-emegencies/?utm_term=.2dce63a78947
    * https://www.cnn.com/2019/01/07/politics/trump-wall-active-national-emergency/index.html
    * https://www.pri.org/stories/2019-01-11/us-currently-31-other-national-emergencies-heres-what-means

    I assume a Democratic president is definitely not going to keep this one around for posterity, if it stays on the books even that long. But is that a safe assumption? I dunno.

    Anyway, i’m inclined to agree with you that emergency declarations are a form of presidential overreach which is not new, and it’s not clear how much more beyond the pale Trump’s use of the tactic is than previous presidents’, and it’s definitely not clear how much more effective it will be at worsening the situation on the border, relative to Trump’s next option.


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