National emergency = profiles in cowardice

Great piece from Dahlia Lithwick:

Now who even knows what’s really on the table, given that the president has variously insisted that he will “almost definitely” declare a national emergency to get his wall done, and then that he would not, and then, as he put it on Friday, “We’ll work with the Democrats and negotiate, and if we can’t do that, then we’ll do a—obviously we’ll do the emergency because that’s what it is. It’s a national emergency.” So. Things.

Given the amount of thinking lawyers have put into the question of presidential power to declare a national emergency at the border, it would be frankly somewhat amazing if Barr hasn’t given it any actual thought. If you are inclined to bone up, you should surely start here, (and then here, and also this, and this, and here, and many thousands of words suggesting that we are not presently in an emergency and also that the president cannot use eminent domainto toss people out of their ranches and churches and homes by simply saying there is one). Given the reality that many Americans are as opposed to a declaration of national emergencyas they were to the shutdown, it might behoove Republicans in the Senate to find out whether the new attorney general plans to greenlight whatever power grab the president plans to arrogate to himself.

Apparently, though, nope, they’re cool. If Republican senators really wanted to stop this national emergency declaration from happening, all they would have to do is promise to veto any attorney general nominee, such as Barr, who refuses to reject the possibility. That’s it. Instead, the current plan appears to be that Senate Republicans will let the emergency declaration go forward, try to blame House Democrats, and then allow the question to be tied up for months and years in the courts, with setbacks blamed on “liberal judges.” Is it brave? No! Is it a bold declaration against unchecked executive overreach that will set an awful precedent whatever the outcome? No! Is it consistent with conservative and libertarian views of property rights and limited government? Also, no! And should the president declare his emergency, does anyone think the Senate will at any time check him, as the law, on its face, demands? No to that too!

Senate Republicans have no good option here between allowing another shutdown to happen and allowing the president to declare a national emergency without consequence. Moving calmly and deliberately toward the latter choice only because it’s the one that hasn’t yet been tested isn’t just shortsighted and cowardly. It’s Congress choosing again to do nothing to stop the president, and then claiming falsely that there is nothing they can do to stop him.


About Steve Greene
Professor of Political Science at NC State

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