I never thought that Trump could
make me feel better and younger. But he finally has by transporting me back to the
1950’s and my days at Harvard Law School when I studied Constitutional law.
Those were the good old days —
when it was all just theoretical!
I will spare you a blog in
lawyer’s language, so here is what I learned—in plain English.
The overwhelming concern of our Constitution’s authors was to not recreate the monarchy they were
then violently [militarily] opposing.
Whatever else America might be, or become, the Founders were united in
their determination that there would never be anything like a KING ruling over
That was why they created 3 – yes,
THREE— separate branches of government: legislative; judicial and executive. By
carefully allocating power amongst them — the famous “checks and balances” of
our constitutional system – the Founders aimed to keep each of the three
branches free from undue influence or encroachment by the others – particularly
the executive branch President. One needn’t have attended Harvard to understand
this; every high school civics class is drilled on this relationship. Congress
makes the laws, the Executive executes and carries out the laws, and the
Judiciary says what the law is, or was.
The Founders also empowered the Congress [importantly with the power of the purse], because they were believed to be the closest to the people whose money it was to be spent. Only Congress can provide and allocate funds (through its normal appropriations process or special legislation), and the President (or members of the Executive branch reporting to the President) can NOT legally spend a penny unless and until it is appropriated by Congress. The Constitution gives the executive branch a single mechanism to reject Congress’s decisions in this regard (the veto), but not the power to ignore or override them. In the absence of an appropriation, the executive may not act.
History is, of course, full of
horror stories of how democracies in the past century have slipped into
autocracies under leaders who illegally usurped existing legislative powers
until ‘the people’ were essentially subjected to dictatorial whims. It is hard
to believe that even the most distressed Americans today could possibly want
Now we have Trump –like it or
lump it—insisting that he will spend billions more on his beloved wall across
the southern border than the amount Congress has finally, after serious and due
deliberation, authorized as appropriate and necessary. To do so, he claims that
by simply declaring ‘an emergency,’ he can not only accept the monies Congress allocated for this purpose (some
1.3 billion dollars) but also take other money allocated by Congress for other purposes and put it toward wall
Such an approach, using a
spurious determination of an ‘emergency’ at the southern border at the same
time as he was accepting Congress’s number by signing the bill they sent him,
is in blatant contempt of his Constitutional rights. The cooked-up, and self-admittedly
fake emergency is, on its face, a gross violation of the Constitution.
The reason that this may be his
biggest and fatal mistake is that it is highly likely that he will unite the Court System with Congress in
stopping this imperial fiat!
Typically, the Supreme Court
prefers to avoid adjudicating disputes between the other branches of government,
properly believing that a political process is the best and proper forum for
resolving such issues. This case is likely to be seen as truly exceptional for
the simple reason that such a blatant power grab poses a serious danger to the basic
Constitutional separation of powers – and, very
to the Court’s own independent authority.
If the Court were to stay on the sidelines in this instance, who’s to
say that next ‘emergency’ won’t be invoked to overcome a Court order or
decision that the President finds ‘inconvenient?’ There are several such really
serious cases out there to worry about: health care; the special counsel; and
Roe v Wade, for example.
Now that he has just invoked this
loaded word –emergency–there will surely be emergency litigation that will
move like lightening through the court system and reach the Supreme Court in short
order. And, (I am obviously sticking neck out here) this Supreme Court is VERY
LIKELY to unanimously say NO to Trump. He personally helped that along by
saying – in publicly announcing his own emergency! — “I don’t have to
do this now, but I want to do it now.”
What are even the most ardent
Trumpistas going to think and say when ‘his court’ and both houses of Congress reject this blatant power grab?
It could all well come together at the same
time Mueller’s report is finally being published, adding fuel to an already
Perhaps that will finally be the
moment to use the 25th Amendment (the provision for dealing with
illness and incompetence not the
politics of impeachment) before Trump can do even more devastating and lasting
damage to our precious country.
If anyone ever had any doubt
about Trump’s mental health and competence, this totally self-inflicted wound makes
it clear as crystal now to the world at large.