Cracks in our Constitution

We can finally put the threat of a government shut-down in our rear-view mirror.  The funding of the budget will proceed for rest of the year and another intractable partisan battle is now just dust. 

But, there is a lingering odor of it remaining, thanks to President Trump’s declaration of a “national emergency” to reallocate authorized spending to direct the building of a “wall” along our Southern border, and, in doing so, cracks can be seen in our Constitution.  This may seem like hyperbole . . . Let me try and explain why it is not. 

In conversations today is it difficult to draw conclusions about dire consequences – everything is interpreted as partisanship.  This necessarily reduces discussions to argument, making us vulnerable to wrong-thinking and threatens civil society.

We sometimes forget that there is nothing new in stark divisions.  Politics in this country has always been bare knuckles.  Aaron Burr and Alexander Hamilton fought a duel over their personal and political vendettas.  The competition of agnostic machines, pursuing control of local and even state-wide levers of government as a virtuous end, have risen and fallen.  Race has often been used as a weapon of excuse to ward off change and growth.

Along the way, we have faced many, many threats to our democratic republic and fended off the danger.  Just in the last half-century, we have faced at least two critical moments of constitutional crisis and emerged stronger as a nation.  President Lyndon Johnson’s bungling us into an unwinnable obscure wall nearly broke us.  Congress responded (War Powers Act) by marking clearly the boundaries of a President’s authority to engage a foreign adversary.  When the criminality of Watergate exploded, Congress once again rode forward, as our Founding Fathers designed, with draft Articles of Impeachment prying a reluctant President’s finders from the scepters of power. 

Congress has always been intended as the preeminent branch in our national government.  Congress declares war; Congress appropriate funds; Congress can over-ride a Presidential veto; Congress can elect a President in the event the Electoral College fails; Congress can adopt measures to amend the Constitution; Congress investigates and can vote to impeach a President; the Senate can reject Presidential appointees.  The “paper” powers of a President, as Lyndon Johnson, Richard Nixon, and Bill Clinton learned, pale against the potential weapons at congressional disposal.

Despite the recent “victories” of congressional institutionalists, memories of the enormity of its authority fades.  Iran-Contra, a “secret” criminal racket run out of President Reagan’s National Security Council to funnel arms to Nicaraguans, was a missed opportunity by Congress to slap back at the Office of the President. A blank check to conduct a “dirty” campaign against international terrorist organizations has never been scrutinized and circumscribed by Congress.  We are essentially at war in Syria and Congress has nary to be heard on our use of force.

Now, we have another threat – a border wall.  Congress authorizes funds and provides at least some direction to a President on how to spend.  Hence, money ear-marked to our military should not be used for domestic purposes.  And, a “national emergency” permitting a President to re-allocate money has always meant war or a weather disaster.  President Trump is looking to expand that definition to mean anything a President decides is an emergency, in theory, wiping out the concept of Congress having appropriational authority.

This is not a partisan issue.  President Obama got mad at Congress’ fecklessness about immigration reform and decided to use his executive authority to create a “Dreamer” program out of thin air.  Similarly, he tired of Congress’ bickering about environmental reform to use his regulatory authority to impose “clean” limits on automobile manufacturers to spur the development of more environmentally friendly fleets.  Democrats applauded his fearlessness, while Republicans labeled him a dictator.

The shoe now has found a different foot.  Democrats in Congress have rediscovered authority its predecessors ceded to the White House and are threatening to sue President Trump for abusing his Office by his declaration of a national immigration emergency.  Republicans, previously jealous guards of Congress, have forgotten their principled opposition to President Obama’s policy initiatives.  Neither party has been consistent and it is a shame neither recognizes the damage they have done to our Constitution in their cowardice.

In 1952, in the midst of the Korean War,  the United Steelworkers of America called for a strike against American steel manufacturers.  This did not bring pleasure to President Truman, who needed steel to burnish our munitions industry in an active “conflict” (Congress never formally declared war against Korea).  He decided this was an emergency and seized or “nationalized” the entire steel industry, thus forestalling any possible strike. 

Labor was not at all unhappy with this result, as President Truman did not invoke statutory authority to rule the strike illegal.  Obviously, the steel companies were incensed and sued to win back their businesses.  They eventually won in the United States Supreme Court (Youngstown Sheet & Tube Co. v. Sawyer), presidential overreach was smashed, and steel workers eventually got their strike (it lasted 53 days), their demands were met, and the “conflict” efforts proceeded without glitches.

We are at another Youngstown Sheet moment.  Almost seventy years ago, a somewhat divided Supreme Court (there were no less than 7 opinions authored in this 6-3 decision) saved us from a President “run-amok.”  Today, Congress has told President Trump no additional funding for a border wall.  He pretends this means nothing and has said he will press forward anyway.  In order to build this wall, he will have to use the power of “eminent domain” to seize private property on which construct it.  Yep, in order to build his wall, President Trump, against the express wishes of Congress, will be taking land from private citizens.  The sounds you are hearing is our Constitution creaking; hopefully, Congress or the judicial system prevents it from breaking.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to jim@rockefellerlawcenter.com.