President Donald Trump is threatening to use emergency powers for a non-emergency by moving money around for a wall that even Republicans in border states don't want. Speaker Nancy Pelosi, D-Calif., having raised five children of her own, knows that to give in to the president's temper-tantrum would be foolish. She continues taking votes to reopen departments of the government. On Thursday, she got 12 Republicans to defect on a bill to reopen the Transportation Department. Sen. Lindsey Graham, R-S.C., tried to pursue a deal involving funding for the wall in exchange for protection for Deferred Action for Childhood Arrivals (DACA) recipients. The president is having none of that. (The White House previously quashed an effort for $25 billion in wall money for DACA relief.)
"I think we're stuck. I just don't see a pathway forward. I don't see a way forward," said Graham. "I have never been more depressed about moving forward than I am right now. I just don't see a pathway forward." Later Thursday afternoon, he tweeted (inadvertently conceding the "emergency" wasn't at the border, but with Trump's failure to bully Democrats into giving way):
Graham and the other 52 members of the Republican majority in the Senate need a job description. Fortunately, there is one: Article I of the Constitution. Congress is the legislative branch, the only body with the power to levy taxes and appropriate money. It has responsibility for all sorts of things under a general provision ("The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States") and many itemized provisions (e.g., "establish an uniform rule of naturalization").
The Constitution does not say "but ask the president first" or "only do such things that the president definitely won't veto." (To the contrary, there's a provision to override vetoes in there - honest!)
The answer to Graham's dilemma is simple: Do your job. The Senate can take up the bills to open the government passed by the House. Graham could reintroduce the Gang of Eight immigration legislation which passed the Senate in 2013 by a vote of 68 to 32. The Senate could come up with its own bill, put it on the floor and vote on it. (Graham apparently has a few ideas.)
What Graham and the rest of his colleagues cannot do is simultaneously enable an unhinged, authoritarian president anduphold their oaths of office. And what they surely should notdo is facilitate or encourage Trump to usurp the power of the purse. The Washington Post reports:
"The White House has begun laying the groundwork for a declaration of national emergency to build President Trump's border wall, including searching for unused money in the Army Corps of Engineers budget, two people with knowledge of the preparations said Thursday. . . .
"Trump has urged the Army Corps to determine how fast contracts could be signed and whether construction could begin within 45 days, according to one of these people, an official familiar with the deliberations who spoke on condition of anonymity to describe them.
"The administration is specifically eyeing a disaster spending bill passed by Congress last year that includes $13.9 billion in funding that has been allocated but not actually spent for a variety of projects, according to the second person, a congressional aide who also requested anonymity."
Graham and his colleagues should, of course, in concert with the House, pass a resolution declaring there is no emergency justifying such a power grab and commit to opposing the president in court. By cutting off Trump's illegal escape hatch, they can force the White House and the House to resolve this. And as a defender of the military (as he often tells us), Graham should be the first to object to use of funds for the military for Trump's scheme.
Conservative writer and lawyer David French provides guidance that Graham should find helpful:
"The bottom line is that even under the most generous statute, only during a "national emergency" that "may require" the use of the military may the president allocate funds for "authorized" construction projects that are "essential to the national defense." . . .
"The legal argument in support of the notion that constructing a border wall is "essential to the national defense" boils down primarily to the naked assertion that, well, courts won't dare question the president. But words still have meaning. We are not in a state of declared war with Mexico. There is no invading army. Illegal-immigrant crime, as tragic as it is, isn't an act of war. It would be strange indeed to argue that a border fence with an allied country is "essential to the national defense" when the border-security mission by statute isn't even a military mission."
Other Republicans - including Sens. Susan Collins of Maine and Lisa Murkowski of Alaska have publicly mused that an emergency declaration should be off-limits. Graham, who is now chairman of the Judiciary Committee, could actually hold hearings (French would be an excellent witness) on the topic and pass legislation removing any doubt as to the impropriety of Trump's planned assault on Congress's constitutional powers.
There is no shortage of things Republicans can do to move “forward,” as Graham put it. What is missing is any sense of obligation beyond defending an unhinged president and staying in the good graces of crackpot Fox News personalities. In throwing up their hands, they induce Trump to attack Congress’s power, the Constitution and the rule of law. If Graham cannot see that, the good people of South Carolina should vote him out of office in 2020. Those voters are constitutional conservatives, right?
Jennifer Rubin | The Washington Post
Jennifer Rubin writes reported opinion for The Washington Post.