Executive Power

Some Conservatives Recognize the Risks of Using Emergency Powers to Build Trump's Wall

They correctly warn it would set a dangerous precedent that could be abused by future presidents, including liberal Democrats.

|The Volokh Conspiracy |

In my January 7 post on Trump's potential use of "emergency" powers to build a wall on the Mexican border, I warned that, if he succeeds in this plan, it would set a dangerous precedent that conservatives would have reason to regret the next time a liberal Democrat occupies the White House:

If Trump is able to overcome legal obstacles and use an emergency declaration to secure funds for the wall without congressional authorization and use eminent domain to seize the land he needs, conservatives are likely to have good reason to regret the precedent it would set. The same powers could easily be used by the next Democratic president for purposes that the right would hate.

Consider a scenario where Elizabeth Warren wins the presidency in 2020, but Republicans in Congress refuse to allocate funds she claims are necessary to combat climate change and institute the gigantic "Green New Deal" program many progressives advocate. President Warren could then declare climate change to be a "national emergency" and start reallocating various military and civilian funds to build all kinds of "green" construction projects. She could declare that climate change is a threat to national security, and use the Army Corps of Engineers and other military agencies to participate in the project.

Indeed, the claim that climate change is a menace to national security is at least as plausible as the claim that undocumented immigrants on the Mexican border are. The Obama Administration Department of Defense even published a report on the subject in 2014. And, of course, if President Warren decides she needs to seize some private property to carry out her plans, she could cite the Trump precedent to use eminent domain for that purpose. This is just one of many ways in which liberal Democrats could exploit the sorts of powers Trump claims here. It would not be difficult to imagine others.

Since then, a number of conservative commentators who (unlike me) support the basic idea of building a wall, have also warned against the dangers of setting this kind of precedent for sweeping presidential power. They include David French, Philip Klein of the Washington Examiner, and the editors of the National Review. French correctly cautions that "[e]ach [such] abuse builds on the next; hypocrisy builds on hypocrisy. The only clear winner is the imperial presidency." Klein points out that conservatives could easily end up as long-term losers, even (perhaps, especially) if Trump's emergency ploy stands up in court:

If President Trump tries to invoke emergency powers to build a border wall and fails in courts, it would be bad for conservatives. But if he succeeds in court, it would be even worse….

All cases carry risks for conservatives, as in all cases a substantial number of Republicans and prominent conservatives will inevitably endorse the move, thus weakening their ability to resist the next Democratic president who tries to stretch the boundaries of executive power. However, some outcomes are worse than others.

If the Trump loses in court, the wall most likely will not get built; however, it will have a silver lining of having established a court precedent limiting the use of emergency powers, thus hindering the ability of the next Democratic president to invoke them to advance liberal policy goals….

If the Trump wins in court and the wall gets built, at first blush, that would seem like a home run for conservatives. And it's true that they'd get something they want: a wall. However, in the long run, it also means that it will have established a precedent that will allow the next Democratic president to declare national emergencies to advance liberal policy goals.

That brings us to the final scenario, which would undoubtedly be the worst case scenario for conservatives. In that case, Trump wins the case in court, but the decision comes too late for him to get much construction done by the end of his first term. Then, he loses re-election. The next Democratic president could then stop construction on the border wall but still turn around and use the precedent set by court decision as a means of advancing any big-ticket liberal items that can't get through Congress. In this case, conservatives give the next Democratic president a blank check and don't even have a wall to show for it. Nightmare.

Perhaps most interestingly, GOP Senator Marco Rubio recently warned that the use of emergency powers to build the wall could set a precedent for a Democratic president to use it to deal with climate change:

A national emergency declaration by President Donald Trump over border security could wind up hurting Republicans, GOP Sen. Marco Rubio told CNBC on Wednesday.

The Florida Republican contended that Trump was elected on the promise of building a wall along the U.S.-Mexico border and the president has to "keep that promise." But "we have to be careful about endorsing broad uses of executive power," he added. "I'm not prepared to endorse that right now."

Such a declaration would set a precedent, Rubio said. "If today, the national emergency is border security … tomorrow the national emergency might be climate change."

Unlike French, Klein, and the National Review, Rubio has not actually definitively come out against using emergency powers to try to build the wall. He only said he's "not prepared to endorse that right now" (emphasis added). But if he and other congressional Republicans are genuinely worried about setting a dangerous precedent, they could (along with Democrats) pass legislation forbidding such shenanigans, and place tight restrictions on the president's power to reallocate funds and condemn property without specific congressional authorization. In my view, using emergency powers to build the wall is barred even under current law. But the relevant statutes are murky enough that misguided judicial deference to executive power might allow Trump to prevail—and thereby set a dangerous precedent for the future.

The flip side of this is that some liberals might actually like the prospect of using emergency powers to circumvent Congress and seize property for the purpose of combating climate change, or other liberal goals. They might even conclude that letting Trump have his "emergency" wall is a worthwhile tradeoff, if a future liberal president can use the same authority to combat global warming.

Unlike the largely bogus "crisis" on the Mexican border, I believe that climate change is a genuine problem (though there is surely room for disagreement about the extent of the risk, and strategies to reduce it). But that doesn't mean that rule by presidential decree is the right way to address it. And given that we still have many years to address the danger, it would be especially wrong to deal with it by means of emergency powers intended to address fast-moving crises that develop too quickly for ordinary legislative processes. As with other problems requiring government action, it would be best to handle it in a way designed to minimize both the pain caused and the opportunity for power-grabs that expand government control over our economy and society. The revenue-neutral carbon tax advocated by environmental law expert (and Volokh Conspiracy co-blogger) Jonathan Adler, among others, strikes me as a potentially sound approach.

Liberals tempted to use Trumpian emergency powers to fight climate change should remember that Trump is unlikely to be either the last GOP president, or the last dangerous demagogue to get in the White House. In the long run, both left and right would be better off in a world where no one man or woman has the kind of dangerous power to raid the treasury and seize property that Trump now seeks.

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  1. To be clear, nobody’s really comfortable with doing something like this via emergency powers. It’s just that a lot of people aren’t comfortable with taking part in a real life production of “Camp of Saints”, either.

    And that seems to be where things are headed, if we don’t do something very serious about border security.

    1. You do know Camp of Saints is a white supremacist book, Brett. Not a great worldview to adopt.

      1. Life sometimes imitates fiction.

        1. It’s not that it’s fiction; it’s the worldview it takes.

          Hard White Men making Hard decisions about rapacious dehumanized immigrants.

          1. And he’s pointing out we are living in a timeline where the main plot device of Camp of Saints is happening. I see nothing in his comment about supporting white supremacy…that’s all in your head. Judge not lest ye be judged, and by your standard it will be measured to you. In other words, you’re creating speculative fiction/telepathy/strawmen, and where have I heard that before?

            1. “And he’s pointing out we are living in a timeline where the main plot device of Camp of Saints is happening.”

              I haven’t read this book so can somebody fill me in on what “is happening” right now?

              1. Demagoguery about immigrants creating a fake crisis to drive Hard Men to make Hard Decisions? Also, pwning the libs. Just a guess.

              2. Caravans of people from the third world marching to the 1st world in ever increasing numbers.

                1. Been a while since I studied it, but the Wikipedia entry has some instructive quotes:

                  The migrants make their way north, having no desire to assimilate to French culture, but continuing to demand a First World standard of living, even as they flout laws, do not produce, and murder French citizens, such as factory bosses and shopkeepers, as well as the ordinary people who do not welcome them.

                  The mayor of New York City is made to share Gracie Mansion with three African-American families from Harlem, migrants gather at coastal ports in West Africa and South Asia and swarm into Europe, Australia, and New Zealand, London is taken over by an organization of non-white residents known as the “Non-European Commonwealth Committee” which force the British queen to have her son marry a Pakistani woman…

                  That’s some white fragility bullshit right there.

            2. So both sets of caravans are heavily fictionalised devices used to create the idea of a crisis to instigate certain actions?

              1. The caravans in Camp of Saints are fiction. The caravans marching to our Southern border are real.

                1. And you’re using hate-fiction caravans to justify actions towards and in response to real caravans.

          2. Actually, wasn’t it more about Soft White Men failing to make Hard decisions?

            1. Really?? That’s what you guys think is happening??

              Amazing.

              Anyway, the last time “Hard men made hard decisions” about getting rid of people they didn’t like it didn’t turn out so well. But hey, what do you care?

              1. So, you don’t see a difference between genocide and enforcing immigration laws? Interesting, in a pathological sort of way.

                Open borders isn’t rational anymore, it isn’t even ideological. It’s now the sort of moral crusade where people prove their moral worth by competing to be ever more extreme and indifferent to practical reality.

                In this environment, having any practical concerns about the consequences of throwing the border wide open just identifies you as a moral pariah. Well, color me unimpressed. I simply don’t care if you regard me as a monster for thinking we should have secure borders and immigration policies designed with our own countrymen’s interests in mind.

                I’d worry if the likes of you thought well of me.

                1. You don’t have an open border. Insisting that the status quo of the southern US border is open, requiring a state of emergency to be declared, is what makes you a moral pariah.

            2. Wait, weren’t we talking about Trump’s ED and his ability to erect the wall? What does that have to do with soft white men?

            3. Yeah all good genocide fantasies have a good race traitor straw man in them.

              You and Steve King.

              1. But, it’s not a genocidal fantasy. We’re not talking about killing these people, just building a wall and telling them to go home, and apply by ordinary means if they want to immigrate here. At which point we’ll evaluate their application on the basis of whether it benefits US, not them.

                That’s what I’m talking about above: It’s become the sort of moral crusade where people compete against each other to prove their purity by adopting ever more extreme positions.

                Such as a border wall = genocide. No, a border wall is just a border wall.

                1. apply by ordinary means if they want to immigrate here.

                  I’m sure you’re aware that “apply by ordinary means” can mean a wait up to 30 *years* before there is even an immigration interview.

                  Do you think this is an appropriate length of time to wait?

                  1. It can be up to forever, for people who don’t qualify. But, yes, denials should ideally be prompt.

                    Look, key point here: Nobody but Americans has a right to be in America. For everybody else, entering America is a privilege, to be extended only because their presence here benefits Americans.

                    It isn’t something you can just march up to our border and claim as a right. And if you think it is, that’s pretty good grounds for slamming the door in your face.

                    I’ll say it again: Nobody but an American has a right to be in America.

                    1. Ideally, what is the longest that a meritorious applicant ought to wait before being admitted?

                    2. Nobody but an American has a right to be in America.

                      So in your world, under what conditions do private property owners get to assert their individual rights to decide who may or may not enter their property, and under what conditions should their individual rights be overridden by this collective right that you assert?

                    3. That’s simple enough: You get to admit to your private property in the US anyone you want from the population that are allowed to be in the US to begin with. Just because you’re allowed to let people onto your property doesn’t mean they’re entitled to be in the country in the first place.

                      It’s similar to the way that my right to invite anybody I want to dinner doesn’t mean that the local prison has to release to my custody anybody I give a dinner invitation.

                2. As if the border wall isn’t a moral crusade requiring an extremist position and strict ideological purity.

      2. You do know Camp of Saints is a white supremacist book, Brett.

        Most people make cultural references from the culture with which they are familiar and comfortable.

        Clingers gotta cling.

        1. Instapundit, a widely read and popular conservative blogger, makes a joking reference to it lately these days, pointing out that truth is sometimes stranger than fiction. It’s like pointing out that the Cubs almost won the World Series in 2015 like in Back to the Future (they won in 2016).

          It was otherwise a forgotten book until he brought it up.

          …and that is some real guilt by association there Rev., would think a modern, progressive bien pensant type of fellow like you wouldn’t make that sort of mistake. If I make a Star Wars prequel meme joke like “I am the Senate”, it doesn’t make me a fascist. Or maybe it does, at least to you.

          1. It’s not forgotten among white supremacists. Or academics – I studied it as part of my unit on racial extremism in my Communication Culture and Technology course back in 2003. Along with various apocalyptic fatwas and the Unibomber’s manifesto.

            This isn’t a meme about a plot point here, you and Brett are fully endorsing it’s ‘nonwhites are like locusts’ thesis.

            Is that really what you think?

            1. You actually kinda made my case for me that the book was not well known, by saying you took read it as part of a academic communications in a unit on racial extremism. Not very common for people to engage in such endeavors.

              I bet if you asked 1,000 people on the street if they had heard of Camp of Saints, the answer might (might) be 1. And that is after it was recently given a new breath of life as a meme once the African refugee crisis started. For some actual data, I go to Amazon; 303 reviews for the English translation, and this is world wide, and it was only recently put into print again with an interview with the author because of how prescient he was. By way of comparison, Michelle Obama’s book has 4,829 reviews.

              Anyway, *I* am not endorsing anything, other than defending Brett’s use of a meme against a scurrilous attack that he, by referencing it, is a white supremacist. Furthermore, Brett is not being white supremacist by saying, in effect, that the ship is full and should not taking on any more passengers without tickets. Which leads me to ask, then, just where do *you* stand. Just how many illegal immigrants must a person say should be allowed in lest he be condemned as a white supremacist?

            2. “you and Brett are fully endorsing it’s ‘nonwhites are like locusts’ thesis.”

              More of a “not members of our culture are like locusts” thesis, I think. I have no doubt that, if you picked any random small child from anywhere in the world, and raised them from birth as part of America’s majority culture, that they’d be interchangeable with any child born here and so raised.

              The problem is their culture, not their skin color. Culture is important. It, not skin color, explains why some areas of the world are wealthy, and some are barely at subsistence level.

              The nightmare scenario here is that, instead of the wealthy areas exporting their, yes, superior cultural endowments to the impoverished areas, and raising them up, we’ll import so many members from the impoverished areas into the wealthy areas, that the culture that generated that wealth will be extinguished.

              And the whole world will again be impoverished.

              1. Brett’s on the slippery slope. The logic here is that Trump is rich therefore his golden toilets and personal behaviour and dodgy business dealings must represent an aesthetically and morally superior culture, since the cultural values represented by sheer physical and mental effort involved in, eg, a dangerous border crossing and labouring in low-paying jobs is no longer something associated much with any kind of significant economic advancement. Substituting culture for skin-colour is a coward’s way of embracing racism, or bigotry if you’re sensitive, and it doesn’t even work that well.

                1. Nige, this empirical question of the Wealth of Nations goes back to the 1700s and Adam Smith. There are a myriad of explanations for why some nations are rich and some our not, and culture is right up that as the A +1 explanation. What other do you have that supersedes centuries of accumulated research literature?

                  Is it a slippery slope…no, only because culture has no hard and fast quantifiable making it seem like it to someone who doesn’t want to blame culture. Culture is all “soft” theory, and there are often no hard and fast dividing lines between cultures and nations. But just because our lines our blurry, it doesn’t mean that there are not distinctions to be made between France and Spain, Russia and Mongolia, China and Japan, or Italy Greece.

                  1. When you’re building walls to protect your pure and superior culture from being polluted or degraded by lesser cultures you’ve abandoned any pretence at trying to understand why some people are poor and others rich and devoting all your effort to just keeping things that way. I note that throughout the history of the United States huge numbers migrated to US shores who were themselves impoverished and from impoverished countries, or impoverished parts of wealthy countries. Somehow their cultures did not prevent the accumulation of personal wealth for many of them and the rise of the US as a global economic power. Brett’s explanation is so simplistic it’s meant to be both insulting and obviously a thin and transparent pretext. After all, to take one example, if black people in America are doing poorly as a group, then it can’t be down to America having treated black people like shit for all of its existence, it must be down to their ‘culture,’ which may, partly, have in part been shaped in its modern form by some alleged mistreatment in the distant past. Culture is race for conservatives too snooty to be bothered by anything as arbitrary as silly old race.

                    1. I see you ignore the literature. You gotta a better reason for why some nations are rich than culture?

                      I want a wall to prevent illegal immigration to keep Democrats from importing client groups. Brett (I think) doesn’t want people from dysfunctional countries and cultures because we import their dysfunction. Race does not equal culture, except to white supremacists and SJWs. When we want to think about who we let into this country, it is not white supremacist thinking say “maybe we shouldn’t import large quantities of people from dysfunctional societies”. Imagine if Nazi Germany had won in Europe, would you want lots of German immigrants into America in 2019? Same idea.

                      To your point about past immigration waves, you are historically ignorant. Previous waves had both good and bad additions. The Irish brought a bunch of hard workers, but also a highly negative drinking culture that led to Prohibition; the Italians brought business acumen but organized crime the effects of which we are still dealing with today, the Chinese brought cheap labor along with opium.

                      Let my illustrate your absurdity by another extreme example: Do you really, in your heart (it’s okay if you don’t answer), think that a lot of Afghani Mohammedians who not long ago threw gays off rooftops would fit right into San Fran?

                    2. You attribute the cause of poverty to culture in one breath and point out how foggy and undefined culture can be in another, rendering useless as a single cause, which is why it can be a useful substitute for race for people who think they’re too clever to present as explicitly racist. A culture can be as much the result of its economic state as a cause. More so, probably. An economy can be and often is the result of external, random, arbitrary factors – climate, terrain, location, not to mention the intervention, interference of other cultures. To assume that people from dysfunctional societies will themselves contain the same dysfunction is, actually, racist, don’t you think?

                      I don’t think anyone objects to entry standards that would exclude Nazis or anyone prone to tossing people off rooftops for religious or political purposes, unless maybe the Republicans think a bit of outreach to like-minded immigrants would be worth pursuing after all. Brett wants to keep them out because they’re poor and will therefore infect the US with poorness. You want to keep them out because for reasons that simply can’t be readily understood, immigrants who become US citizens aren’t inclined to vote for the party who treats them with such ravening horror and hostility. If the US is the Roman Empire in decline, you’re terrified that people crossing the border on foot to work in fields and gardens for low pay are the barbarian hordes. You’re idiots.

    2. You’ve got to be mighty paranoid and off your rocker to think Camp of Saints is a possible future.

      Xenophobia comes in many colors.

    3. What is happening right now that is making it so important to deal with illegals today? The numbers of illegals entering the country is not going up right now.

      1. And most of the ones who are coming do not appear to be walking across the southern border.

      2. Imagine a boat that has a big hole in the bottom. At first the water rushes in, but the boat is riding high and there’s plenty of time to deal with the leak.

        Later, as the boat has sunk much further, and is nearly full of water, there’s much less drama around the leak, but the emergency is actually more imminent.

        Illegal immigration is like that.

        1. By most estimates, the number of illegal aliens in the US has also decreased. So in your analogy, we’ve already turned on the bilge pumps and the water is receding.

          1. Those estimates are pretty bad. A recent Yale study suggested 22 million+ immigrants are currently in the U.S.

            But even assuming the rate or the total number has declined, the reason would appear to be that illegal economic migration has become a less immediately lucrative prospect over recent years. So the analogy then is that the castle has been ransacked and plundered, and now there is naturally less interest from invaders. Yet the city walls still lay in ruins and and there are no effective defenses.

            The other reason is that the waxing and waning of illegal border crossings has coincided with the perceived prospects of an impending mass amnesty. It’s been widely reported that the perception created by Trump’s rhetoric did have a deterrent effect, at least for a short time. What the Democrats want to do is not only keep the defenses down, but to shine the amnesty beacon into the sky once again for all to see.

            1. What makes those estimates pretty bad, and the Yale estimate good? I agree it’s a hard number to track, and all estimates should be used with caution, but we have to go with something.

              “So the analogy then is that the castle has been ransacked and plundered, and now there is naturally less interest from invaders. Yet the city walls still lay in ruins and and there are no effective defenses.”

              I have no doubt that economic conditions, both in the US and their home countries, have a great deal of influence on the decisions of people to immigrate illegally. But I hardly think a castle that is ransacked and plundered is a decent analogy for the state of the American economy. And most of the recent breaches of the walls have been caused by the tech bubble or the housing bubble, rather than illegal aliens.

        2. Note that in Brett’s analogy, there are nothing but negative consequences that result from illegal immigration.

          1. Net negative, anyway.

            1. Well, that hasn’t been conclusively established now has it?

              1. If they’re going to improve things here, why weren’t they improving things there?

                I keep saying this: You are what you eat: The immigrant is assimilated, but in the process, so is the culture he or she immigrates to. The immigrant becomes more like the native, and the native becomes more like the immigrant.

                It’s not a one-way process.

                So, in what way do we want the US to become more like the places these immigrants are coming from?

                1. Less to no Transformers movies.

                2. Brett, there is going to be some type of change no matter what happens. Either the US becomes a more open, diverse and tolerant place by not restricting the free movement of people, or the US becomes a more closed, paranoid and xenophobic place by placing large restrictions on the free movement of people. There is no option on the table of “remain exactly the way we are”. So which type of change would you like to see?

                  1. That’s called a false dichotomy. For instance, we could continue to let in the same number of legal immigrants we do (more than any other nation on earth) and have zero tolerance for the illegal stuff. That would make us neither xenophobic nor “open”, but it would make us diverse.

                    It’s not that hard to think outside the box the two parties wants for you.

        3. This analogy might work for entitlement spending or national debt. But we’ve no basis to think that illegal immigration is “sinking the boat,” or even risks it.

          1. It’s like you’re on the Titanic demanding the arrest of everyone in steerage for sabotaging the ship while the Trumpian iceberg is gouging a great gash in the hull.

    4. Other than Drumpf, Lindsey Graham, Mark Meadows, and assorted Republicans who hedge on “not preferable but”

      Those constitutional conservatives.

  2. *ahem* I wouldn’t go as far as calling David French a conservative.

    To the topic at hand:
    Truman used the pretext of an emergency to seize the steel mills, and was shot down by the courts. He complied. It didn’t set a precedent, clearly, because people like Somin appear to never have heard about this little incident. An emergency declaration is not a good idea, but hardly unprecedented, and not as big a problem as you’d expect. In fact, it’s only a trifle worse policy decision than the pen and phone DACA and not nearly as bad any random overthrow of a foreign government without congressional authorization of war first.

    1. The Korean War versus Congress disagreeing with the President. Not quite a perfect parallel in exigencies.

      A president proposing an emergency declaration about a scary subgroup to seize private land via the military is actually pretty new, outside of cliched libertarian fantasia.

      1. As opposed to declaring an emergency and seizing a hundred thousand private individuals…which was accepted by the courts at the time.

        What was that about clearly unrealistic imagined disasterbation fantasies?

        1. …are you citing Korematsu as precedent?

          1. To me, he’s saying that EVEN WORSE things have happened than Trump’s emergency declaration, and that it has not created a bad precedent.

          2. “…are you citing Korematsu as precedent?”

            Yeah, it’s not like this is an Affirmative Action case. But Korematsu’s overruled anyway.

          3. “…are you citing Korematsu as precedent?”

            Your lack of reading comprehension is astounding. Krayt is very clearly mocking you.

            1. He’s mocking my via Korematsu, which requires you think that’s a valid policy to compare.

              For someone who claims to have no respect for me, you do spend a lot of energy posting empty insulting responses to me.

              1. “He’s mocking my via Korematsu, which requires you think that’s a valid policy to compare.”

                Not to anyone with half a brain. You are just further demonstrating that you don’t understand Krayt’s response because your head is so far up your own ass you don’t realize what Krayt is responding to.

                “For someone who claims to have no respect for me,”

                It’s no mere claim.

                “you do spend a lot of energy posting empty insulting responses to me.”

                They aren’t empty, and with as much stupid shit as you post, it takes more energy to resist. And for someone who developed an entire persona based on incompetent attempts at mocking people, you sure are a whiny.

      2. History rarely provides perfect parallels. Should we stop trying to learn from the examination of the past with a comparison to today? I dare say that your shtick causes you to come up with some strange comments now and again, as following that same tread of logic leads occasionally to some absurd conclusions (which should be a clue).

        1. So your argument is that because of Korematsu, we should have no worries that this Supreme Court will decide to allow Trump to spend funds himself in the absence of Congressional approval. And that will become a precedent for future Presidents to do the same thing.

          Whatever helps you sleep at night, I guess.

          1. Me? No. I don’t think it’s a good idea, though Trump does have the power….a consequence of decades of congressional outsourcing to the administrative state. All I am saying is that it’s not unprecedented, and that it won’t be the death knell of the Republic, and further, that you THINK it’s unprecedented when it’s actually NOT unprecedented is evidence that you’re quite wrong about it being unprecedented.

            1. Korematsu was in wartime. The conditions here will not pass so soon. If allowed, it would be a permanent crisis.

            2. Ah, I understand your point now. Thank you. There are precedents to an arguable degree.

              I suppose it always comes down to what constitutes an emergency condition. It seems to me that if Congress has time to consider and debate the issue, it isn’t an emergency that would justify this type of action. Since the wall would take years to build, it’s hard to argue that Congress wouldn’t have time. That seems like a more sensible way to draw the line than arguing over how bad the situation at the Mexican border is or isn’t.

              1. Agreed. They debated and said no, or at least enough of them did. It should be the end of the story until opinions change, just like Obama’s attempt at gun control that died in the Senate. But that’s not how politics works. Obama couldn’t just let it drop and went and did some rather silly executive actions on guns, and neither can Trump just let it drop, especially since it is a central campaign promise.

                Part of the issue, though, is that although the office of the president is quite powerful on paper, the real power of the office is its ability to persuade. Persuasion takes many forms, and sometimes it’s action. Scott Adams is all over this, but he unknowingly just copied the central idea from a classic political science book from 1960 by Richard Neustadt called Presidential Power. Here is the conclusion:

                “Effective influence for the man in the White House stems from three related sources: first are the bargaining advantages inherent in his job with which to persuade other men that what he wants of them is what their own responsibilities require them to do. Second are the expectations of those other men regarding his ability and will to use the various advantages they think he has. Third are those men’s estimates of how his public views him and of how their publics may view them if they do what he wants. In short, his power is the product of his vantage points in government, together with his reputation in the Washington community and his prestige outside.”

              2. “It seems to me that if Congress has time to consider and debate the issue, it isn’t an emergency that would justify this type of action.”

                While that certainly seems like a reasonable position, how many of the 31 active states of emergency actually satisfy that condition?

                1. Yeah, good question. One of them actually dates back to the Carter administration. Perhaps the National Emergencies Act wasn’t such a great idea.

      3. “The Korean War versus Congress disagreeing with the President. Not quite a perfect parallel in exigencies.”

        Unless, you know, you’ve actually read Youngstown and know what the case is about. Then it’s a pretty damn good parallel.

    2. It’s only “not nearly as bad” as long as the President declaring the emergency has some regard for the norms of a democracy.

      Imagine what [insert the politician you fear most] would do with the power to
      o Shut down or censor radio or TV stations
      o Confiscate radio transmitters
      o Shut down or take over wired communication
      o Freeze bank accounts at will

      (Citation for the first three: section 606 of the 1934 Communications Act, which springs into action in the event of war, “threat of war”, or “other national emergency”).

      There’s a lot more, it’s a long list, and we were foolish to allow these hazards to accumulate.

  3. Didn’t Obama appropriate billions to pay healthcare insurers outside the boundaries of his own law and even after such payments were shot down in court? I don’t see how going through an actual legal process ahead of time is worse.

  4. “President Warren could then declare climate change to be a “national emergency” and start reallocating various military and civilian funds…”

    Look, I’m against the omnipotent presidency and I think concocting emergency powers is a terrible idea worthy of Jar Jar … but do you really believe that if Trump turns away from such a bad idea that it will in any way prevent President Warren from embracing it wholeheartedly and being supported unanimously by her party? Not been paying attention to the last 40 years?

    1. Yeah, I do…and so do rational observers on all sides of the political spectrum. Your belief that the past 40 years proves your paranoia speaks more about you than about this fanciful hypothetical that Prez Warren will unleash on us.

      Your refusal to recognize that–if Republicans show the integrity and courage to nip this in the bud–THIS would of course be cited as powerful precedent that Warren cannot unilaterally declare a state of emergency re the environment (or gun violence/mass shootings, or whatevs), is also surprising.

      1. Did Republican adherence to voting for qualified Supreme Court nominees (Ginsburg, 96-3; Breyer, 87-9) stop Democrats from turning the process into the partisan shootshow it now is? Did Republican respect for the longtime power of the Senate minority stop Democrats from nuking the filibuster for nominees or passing the ACA through reconciliation?

        What norms are safe from Democrats who see an opportunity?

        1. Both Democrats and Republicans are responsible for the current shit show that passes for the judicial confirmation process.

  5. No.

    The cost of Trump setting a precedent of using “emergency powers” is not :

    X = {the danger that President Warren / Biden / Trotsky etc would use “emergency powers” to do something ghastly}

    It’s

    X = {the danger that President Warren / Biden / Trotsky etc would use “emergency powers” to do something ghastly}

    MINUS

    Y = {the danger that they’d have done it anyway.}

    Given Obama’s performance with pen and phone, and the chorus of protest that norm-worshipping Dems put up about it (aka crickets) you’re going to need several decimal points to distinguish X minus Y from zero.

    1. Ah yes. Dems are bad justifies the means.

      1. I suppose if Y were any future President of any party, the point would still stand. Although the point is also undercut by the fact that Trump’s defenders always use the bad actions of Obama as a defense.

        1. Just out of interest, why is the point “undercut by the fact that Trump’s defenders always use the bad actions of Obama as a defense” ?

          The point has nothing to do with the merits of Trump and his wall, it has to do with the correct method of calculation of costs and benefits. Which is to compare (a) your estimate of the world if you take a proposed action, with (b) the state of the world if you don’t. Including things that would have happened anyway in part (a) and not in part (b) is a simple calculation error.

          The “bad actions of Obama”, and the crickets from Dems about them, have nothing to do with any moral comparison between Trump and Obama. They are simply is evidence for the large size of “Y.”

          1. I wasn’t commenting on the merits of the wall, or making an Obama/Trump comparison. I was only making the point that your own original comment defends Trumpists giving Trump a pass on bypassing Congress, because Obama supporters gave Obama a pass on a similar action. Thus showing that precedent is already working to support this type of executive action. Thus undercutting your point that precedent isn’t as important as the fact that a future President would be inclined to do it anyway.

            1. I wasn’t commenting on the merits of the wall, or making an Obama/Trump comparison.

              Me neither.

              I was only making the point that your own original comment defends Trumpists giving Trump a pass on bypassing Congress, because Obama supporters gave Obama a pass on a similar action.

              A point that is entirely misconceived.

              1. “The “bad actions of Obama”, and the crickets from Dems about them, have nothing to do with any moral comparison between Trump and Obama. They are simply is evidence for the large size of “Y.””

                Your Y was the danger that Presidents would act anyway, as opposed to acting because of precedent. As evidence of that, you cite precedent.

                I think precedent is far more important than your formula allows. Or perhaps I think Y is much lower than you do. Even Trump, no great respecter of governmental norms, is constantly defending his actions with references to the actions of past Presidents.

                1. You are using “precedent” in two different senses here.

                  The sense in which “precedent” is used in Somin’s piece is the sense that if Team A does X, then Team B will feel justified in doing X (or something that is in their view equivalent to X) themselves. “We’re breaking no rules, Team A changed them already.” An obvious example is the Rs abolishing the filibuster for SCOTUS appointments on a party line majority vote, after the precedent of the Ds abolishing the filbuster that way for all other appointments.

                  But in “As evidence of that, you cite precedent” you are using precedent to mean something entirely different – the idea of a track record. Someone with previous convictions for robbery is more likely to commit future robberies, than someone who has never done so.

                  Trump obviously values being able to cite “precedent” to justify his actions, because that reduces the political cost to him. When the media attacks him, he points to the crickets from the media that followed his opponents doing the same as him. Pointing out your enemy’s hypocrisy is always valuable.

                  But Obama, and Hary Reid, didn’t have to worry about a chorus of media criticism 24/7 when they broke precedent. Nor is there any likelihood of that being different for a future D administration. So Y is not large, by defintion and in all cases. It is simply large for D administrations. How do we know this – precedent in the second sense of track record.

                  1. Thus setting a precedent is only dangerous – Somin’s point – if you are talking about precedent in the first sense; the danger of your enemies delivering a Tit for your Tat.

                    There is no danger in setting a precedent in your second sense – doing something that you may choose to do again. If doing it again is going to hurt you, you won’t do it.

                    The second sense – track record – is relevant for something quite different ; evaluating what your enemies are capable of.

                    1. Okay, thank you for that, I understand. I think I still disagree with you, but we can leave it there.

  6. The wall fight is more about positioning than border security. One of Trump’s main talking points in the campaign was securing the border. It was a major reason many people voted for him. He missed his chance at the beginning of his term when he may have been able to get the funding. If the wall is not at least started, Trump will need a scapegoat to blame. The dems have graciously. fully embraced that role.

    I view this whole wall fight as preliminary skirmishing for the war in 2020.

    I find the dismissal of the Obama did it too argument particularly humorous. It’s like when someone tells you Two wrongs don’t make a right or tell you need to demonstrate forgiveness. The one that tell you that have usually just screwed you over and are not worried about payback.

    1. I think Trump blaming the Democrats for the wall not being built is the best thing he could do for them, since that’s basically giving them credit and admitting defeat and weakness and helplessness and incompetence on his part. A victory over Trump on this signature Trumpian project will be energising and emboldening, so by all means, let him blame blame blame.

      1. It also puts the dems in the position of opposing border security for purely partisan reasons. Every crime committed by an illegal alien is going to be presented as being the dem’s fault. They could win a battle on this but lose the whole war. And, if the dems are not successful and wall – or barrier of some kind – does get funded, they will face a major revolt from their own base. And, that would be a huge boost to Trump’s 2020 campaign.

        1. Sure, that’ll be the big stupid lie, but if the Democrats are going to back down because Trump and his followers might tell big stupid lies about them, they might as well just not get out of bed in the morning. Trump’s success will energise his base, so will his failure. His base is all energy, powered by hate for Democratic political goals. Worrying that trying to achieve your political goals might energise his base is another useless exercise. The Democratic base will only be lost if the Democrats fold, or fail to put up a fight. If they lose after a fight, it’s merely another demonstration of the dangers of effectively ceding political power to the right.

        2. Goju, the Democrats could defuse that outcome by proposing border security measures that don’t include a wall. That would be consistent with their position so far, that they are in favor of increased border security through effective means, and with their 2013 immigration reform proposal that included $46.3 billion for border security. There was no wall in that spending plan, but there was $8B over five years for fencing repair/extension and technological measures, and $30B over 10 years to hire and train additional CBP agents. A new proposal along those lines could take the wind right out of the President’s sails, especially now that polling suggests the wall is not a very popular idea.

          1. ” 2013 immigration reform proposal that included $46.3 billion for border security. There was no wall in that spending plan, but there was $8B over five years for fencing repair/extension and technological measures”

            Wasn’t that the steel slats, which basically you could call a wall or a fence as you please?

            “especially now that polling suggests the wall is not a very popular idea.”

            First poll I found is Qunnipiac – support for border wall just reached an all time high in December. Still a minority at 43 percent, but trend is in Trump’s favor.

            1. Quinnipiac has asked the wall question 14 times since Nov 2016, when support was 42%. It dropped to 33% in May 2017, then up to 40% in April of last year, then dropped a bit but rose to 43% last month as you say. I agree it is more popular than the impression I gave, but there is no reason to believe it is likely to ever cross 50%, certainly not before the other side could act.

          2. I agree the dems do have a number of counter strategies to deal with Trump’s wall demands. They do not appear to be using them effectively (imo) at this point. They should appoint better spokespersons to start with. Schumer and Pelosi look like morticians, and not the good kind. Also, partying in Puerto Rico during the shutdown is a really bad visual. This just plays into Trump’s strengths. They need someone in DC that is energetic, smart and looks ready to do battle.

  7. “Liberals tempted to use Trumpian emergency powers to fight climate change should remember” that Republicans did it, and if they don’t they are idiots.

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