Washington Wednesday: Declaring a political emergency

NICK EICHER, HOST: It’s Wednesday, February 20th, 2019. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Next up, Washington Wednesday.

Lawmakers may be on recess this week, but Capitol Hill is still buzzing over last week’s national emergency declaration.

TRUMP: So, we’re going to be signing today, and registering, a national emergency. And it’s a great thing to do because we have an invasion of drugs, invasion of gangs, invasion of people, and it’s unacceptable.

President Trump’s announcement triggered an immediate legal response, as he predicted it would.

TRUMP: The order is signed. And we will then be sued, and they will sue us in the Ninth Circuit, even though it shouldn’t be there. And we will possibly get a bad ruling, and then we’ll get another bad ruling. And then we’ll end up in the Supreme Court, and hopefully we’ll get a fair shake.

EICHER: On Monday, California Attorney General Xavier Becerra did file suit over the president’s emergency declaration. Attorneys general from fifteen other states joined him. They claim the president’s move violates the constitutional separation of powers.

BECERRA: This is not 9/11. This is not the Iran hostage crisis of 1979. This is a president showing his disdain for the rule of law and our U.S. Constitution.

The emergency declaration allows the president to divert funds from congressionally approved projects to pay for the border barrier. That includes military infrastructure.

The lawsuit claims diverting funds from military bases will hurt installations in their own states and harm local economies.

REICHARD: Democrats are also challenging the president’s authority to divert those funds because only Congress has the power to authorize federal spending.

The president’s supporters are defending the declaration—and his authority to issue it. House Minority Leader Kevin McCarthy said the president is doing what he must to protect the southern border. This, in an interview on Fox News.

MCCARTHY: So the president, one, has the authority. Yes it is an emergency that has been shown before. And I believe at the end of the day, this wall is going to be built, not sea to shining sea, but about 200 miles.

Senator Ron Johnson of Wisconsin admitted to having some concerns about the precedent Trump might be setting.

JOHNSON: Absolutely I share those concerns, which is why we’re going to take a very careful look at what he’s doing here in this instance. But again, I have to stress, this president has been thwarted in his attempt to keep this nation safe and secure, to secure our borders.

EICHER: Republican leaders have been noticeably quiet since the emergency declaration. But earlier this month, when the president raised the idea, many in his own party were vocal in urging him not to.

Senator John Cornyn of Texas said the issue would divide his colleagues, especially if the House passes and sends to the Senate a resolution of disapproval. Senator Susan Collins of Maine said an emergency declaration to fund the border wall would render the appropriations process meaningless.

And Senator Roy Blunt of Missouri said that while he favored building the wall, doing it this way sets a dangerous precedent.

REICHARD: Here now to talk about all of that is Henry Olsen. He’s a senior fellow at the Ethics and Public Policy Center and now a columnist for The Washington Post. Henry, good morning.

HENRY OLSEN, GUEST: Good morning.

REICHARD: So we just heard a lot of concern there over the president’s national emergency declaration. The legality of it is one thing, and we’ll get to that in a minute. But there’s also the issue of precedent. So first of all, is this as unusual as some critics say?

OLSEN: It is in the scope of the importance of what he has done. There have been plenty of presidential emergencies in the past, so in the sense of is this the first time, the answer is no. But what we’re talking about is an issue that has been raised to being perhaps the national issue on the political debate. Debated in Congress, met with a stalemate, and then the president plays the emergency as a trump card, if you will. That’s unusual and that’s the sort of precedent that people are worried about, that a president can basically treat Congress as a lap dog and say, well, if you don’t do what I want, I’ve got the power to do it without you.

REICHARD: What other instances could you see a future president, from either party, using this kind of tactic for? Surely it has some limitations?

OLSEN: Well, it certainly does have limitations to it. The Emergency Act only permits a president not only to declare an emergency but pursuant to other statutes that have delegated some sort of authority. So it would presumably be limited by the nature of those statutes. It’s also clearly limited by judicial review or by Congressional approval, that Congress with a two-thirds vote could override a presidential veto declaring such an emergency.

So, I think it would not necessarily be as broad as Nancy Pelosi suggested, that a Democrat could declare a gun emergency and then do what? Confiscate all handguns? There’s no delegated power for that.

But it could be broader than we want, and that makes it very difficult to decide whether it’s a good thing or not.

REICHARD: Several lawsuits have already been filed over this declaration. President Trump has said he expects the case to go all the way to the Supreme Court. He also said he thinks he’ll win. What’s his legal justification here, and do you think he has a case?

OLSEN: The thing is, I am a recovering lawyer and one thing I remember from my legal days is you really have to get inside the details. We don’t have briefs from both parties yet, so we can hypothesize what their arguments are, but until we actually read them, it’s really not useful to try and speculate and evaluate. I’m going to say that he’s got smart people. I presume that they have made the best case possible and that they have not put him out on a limb. But other than that, until we read the briefs, it’s really not helpful to speculate.

REICHARD: Well, I can appreciate that. Of course, this power struggle between Congress and the president is nothing new. President Barack Obama in 2014 said he had a pen and a phone and planned to use both to work around opposition in Congress. So is President Trump merely escalating that tactic? Does this power struggle have a logical conclusion or should we just resign ourselves to this as our new political norm?

OLSEN: Well, I hope it’s not the new norm because what it means is that we’re constantly kicking political questions of the highest order to the courts. One thing that we’ve kicked virtually everything relating to mores or social issues to the Supreme Court. If this becomes the norm, then we basically have kicked every political issue to the Supreme Court and that’s not a democracy.

REICHARD: How do we get that back?

OLSEN: Well, I think the way we get that back is, first, the Congress should remove some of the delegations of power that they’ve given to the president. They can certainly revise the National Emergencies Act. I also think a non-divided government is something that would produce more legislative action. The fact is that between the filibuster and giving different parties different control of different chambers or different houses, we have essentially elected gridlock. And when we have gridlock, there’s temptation to open the gates and have the water of decision-making flow and that always favors a retencity executive because the executive, both by the nature of the office and by the personalities of the people who seek it, want to make yes/no, stop/go decisions. And the more we have gridlock in Congress, the more an executive will be tempted to act as executives always have, which is to be the decider in chief.

REICHARD: Well, it seems unlikely the legal battle is going to play out before the 20-20 election comes and goes. What do you think the likely political ramifications are going to be? And does this help or hurt the president’s reelection bid?

OLSEN: I originally thought that it would hurt it, not because it would cost him support, but it would prevent him from gaining the support that he needs. The first poll that came out today suggests that maybe it’s not so dire as some people have thought. There’s two things to remember for the reelection bid. One is that the president, if he wants to win on his own—let’s just say without relying on the Democrats to nominate somebody unacceptable—he has to get his approval ratings up to around 46 percent. Second, even if he doesn’t, he can win if the Democrats nominate somebody who temperamentally or issues-wise is considered too extreme. I don’t think this helps him in either case, but if it doesn’t hurt him, it may end up being a wash and we’ll move on to other issues.

REICHARD: Henry Olsen is a senior fellow for the Ethics and Public Policy Center and columnist for the Washington Post. Henry, thanks for your insights today.

OLSEN: Thanks for having me on.

(AP Photo/Eric Gay) In this Tuesday, Jan. 22, 2019, photo, workers place sections of metal wall as a new barrier is built along the Texas-Mexico border near downtown El Paso. 

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