A bipartisan howling is coming from Congress about President Trump’s declaration of a national emergency to build the border wall. And while hypocrisy in Washington is always in the water, on the question of immigration, there is enough of it to make your hair curl.
Both Republicans and Democrats alike have rushed to condemn Trump for taking unilateral action.
House Judiciary Chairman Jerrold Nadler (D-N.Y.) called Trump’s actions an “abuse of his constitutional oath and an affront to the separation of powers.” House Speaker Nancy Pelosi (D-Calif.) and Senate Minority Leader Chuck Schumer (D-N.Y.) called it “a gross abuse of the power of the presidency.”
Senator Mitt Romney (R-Utah) said he did not “believe declaring a national emergency is the right approach.” Senator Lamar Alexander (R-Tenn.) called the move “unnecessary and unwise.” Senator Rob Portman (R-Ohio) said the declaration was “not the preferred way to go.”
It’s natural for the legislature to raise its hackles when the president subsumes some of its authority for himself. But what all of these statements fail to acknowledge is that the president is invoking authority that Congress slowly has been shirking and giving to the executive for years.
Although they may all just be waking to this crisis now, it is, to be sure, a crisis. And no, I’m not talking about the border. Our balance of powers is wildly askew, and it’s Congress that has its thumb on the scale.
As George Washington University law professor Jonathan Turley points out, “This crisis is not the making of Donald Trump. This is the making of Congress.”
The reason the executive branch has so much authority is, quite simply, that Congress has given it to him—136 times, to be precise.
Executive power of this magnitude is a construction of the Congress. It is built out of years of slow delegation of authority, where the presidency has amassed a trove of powers that previously did not belong to the executive branch.
And, as presidents slowly began to exercise those powers in the face of an increasingly idle legislature, there was almost no resistance. Fifty-eight national emergencies have been declared since Congress passed the National Emergency Act of 1976—ironically, a law that was designed to put parameters around the president’s ability to declare emergencies, but instead has served to make them perfunctory.
National emergencies have reapportioned funds for everything from “anchorage and movement of vessels” around Cuba, importing uncut diamonds from Sierra Leone, the presidential election in Congo, issues concerning Burundi, Belarus, and the Western Balkans, and property belonging to associates of Zimbabwe President Robert Mugabe.
Thirty-one national emergencies are renewed annually and still remain in effect, related to the Iran hostage crisis, the proliferation of weapons of mass destruction, and Libyan leader Muammar Gaddafi, who is now dead.
Between 2001 and 2014, the Department of Defense funded a total of 18 projects with military construction funds redirected (or “reprogrammed,” to use the Beltway jargon) using national emergency declarations. Among them were projects to build aircraft parking ramps in Iraq, dining facilities in Afghanistan, waterfront development in Bahrain, and a courthouse in Guantanamo Bay, Cuba.
At none of these points did Congress object. Rather, they continued to encourage the practice by funneling billions of dollars to the executive with few restrictions.
It’s why President Obama was able to go to war with Libya without a declaration from Congress, and fund the entire war using largely unrestricted funds from Congress. It’s the same reason that, when Congress refused to enact Obama’s immigration proposals, he usurped legislative authority by implementing the Deferred Action for Childhood Arrivals program to wild applause from Democrats.
When a Republican Congress blocked him from using taxpayer money to bail out insurance companies going bankrupt from Obamacare, President Obama did it anyway, ordering up funds from the treasury that Congress had never approved. (House Republicans then sued him, and won.)
As Turley notes, however, what Trump is doing with the wall is substantively different, in that he is using already authorized and appropriated funds for border protection. Rather than ordering new spending for a cause never authorized by Congress, as Obama did, Congress has already given Trump this money with limitations so loose that he can, quite legally, redirect it for a cause already authorized in law (the Secure Fence Act, passed in 2006, with the support of Chuck Schumer and former Senators Hillary Clinton and Barack Obama).
Congress, the body of lawmakers, has been reduced to a spectator in the act of making law. The imperial presidency that both sides now so loudly decry is a creature of the legislature’s own making.
While members can squabble about how things “should be” or the constitutional obligations of the Article I branch, the de facto state of affairs is that the executive does most of the meaningful lawmaking. Congress merely dithers.
Recall that this is the same Congress that, after Trump telegraphed for months his willingness to declare a national emergency should Congress fail to deliver, easily could have blocked him from declaring one in their most recently passed funding bill.
They didn’t—either out of a crass calculation that being able to howl about Trump’s unilateralism was good politics, or out of a tacit acknowledgement that, for Congress, it’s an easier political lift to have the president do their job for them. They get their preferred outcome, and also get to act appropriately aghast at how it was done.
But this duplicity is growing tiresome.
Congress cannot complain about the use of the national emergency declaration—or executive unilateralism—while simultaneously refusing to take any efforts to stop it. If Congress truly wanted to reallocate some of its power, it wouldn’t engage in this silly resolution of disapproval. It would amend the 1976 statute—and the 136 related statutory provisions, also passed by Congress—that give the president so many powers in the first place.
But this is the modern Congress, a shadow of the representative lawmaking powerhouse that the Framers envisioned the Article I body to be. The most we can expect them to do is to fret and fritter.