The second catch is legislative. Congress will now vote on a statement of disapproval of Trump's use of his emergency authority. That statement will fly through the House of Representatives. In the Senate, it will need only 51 votes. Can Trump muster a blocking majority? Maybe not. He can veto the bill, and Congress might not muster the two-thirds majority necessary to override it. But even if he does, Congress will have gone on record accusing the president of abusing his powers, and acting like a dictator.
Central American border crossing and asylum claiming have been accelerating since the end of 2017. What kind of emergency can be postponed for 14 months? In 2018, Congress offered a lot of money for more fencing. Trump refused it. Even in 2019, it offered some. The state of emergency allows the president to reach for a little more than offered in 2019, but a lot less than was on the table in 2018. This does not look like emergency behavior. A congressional vote of disapproval will harden the already widespread impression that Trump himself does not believe his own claims, that he is playing demagogic politics with border security.
The third catch is political. The emergency powers Trump has proclaimed allow him to reshuffle money between military-construction envelopes. Every additional dollar he devotes to the border is a dollar taken from another project already approved by Congress. Every one of those projects has patrons and sponsors. And because most military contracting goes to red states, most of the reshuffled dollars will be removed from red states.
Among the projects at risk: a $32 million vehicle-maintenance shop in Fort Campbell, Kentucky. I have no idea whether this project is supremely necessary or a pork-barrel boondoggle. But I bet Senate Majority Leader Mitch McConnell strongly believes it is the former. What will Senator Thom Tillis of North Carolina-up for reelection in 2020-think if Trump pulls funds from the approved but not yet contracted project for a new aircraft hangar at the Marine Corps' air station in his state? And so on down the line.
Senate Republicans have submitted to a lot since 2017. Trump might at last have discovered their breaking point.
The fourth catch is constitutional. House Speaker Nancy Pelosi has pointed out that Democrats stand ready and eager to make use of the emergency-powers precedent being created here if they reclaim the White House in 2020. Yet once the courts get done, Trump's precedent might actually set new limits on presidential emergency powers.
Remember, the most binding Supreme Court ruling on emergency powers delivered a rebuke to presidential power: the 1952 steel-seizure case Youngstown Sheet & Tube Company v. Sawyer. In the context of a real emergency, the Korean War, President Harry Truman tested the outer limits of his power to seize private property-and got told no. The case governs to this day.
Trump's assertion of emergency powers does not go anywhere so far as Truman's. He's messing with congressional prerogatives, not private property-but he's inviting another sharp rebuke, one that will bind future presidents, too. Those future presidents might someday want for an authentic public purpose the powers Trump will shortly squander for crass political motives. To rebuke Trump's abuses, the better presidents of tomorrow will be denied a power they might have used for good.
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