The Dangers of Government by Executive

The more a president governs unilaterally, the greater the stakes of every election, and that's a bad thing.

|The Volokh Conspiracy |

There are lots of things one could say about Trump's invocation of an emergency statute to "build the wall." Other commentators, including Ilya, have said most of them, so I'll refrain, but in short it's a terrible idea, and I hope the courts stop it.

I did want to add one additional consideration that goes beyond the issue of the wall and goes to the general issue of presidents acting unilaterally on significant, controversial issues, regardless of whether they have the technical legal authority under broad, vague, statutes.

During the Obama administration, defenders of presidential unilateralism argued vociferously that (a) the president was elected to get things accomplished; (b) Congress, via Republican majorities in the House, and later the House and Senate, was being obstructionist; and (c) therefore, the president was within his rights to use his full authority to govern unilaterally, even in the face of longstanding contrary norms. For example, Obama, like Trump, was stymied by Congress on his preferred immigration policy, so he used his broad statutory authority under the immigration laws to resolve the "Dreamer" issue indefinitely, using that authority far more broadly, more consequentially, and in more direct defiance of Congress than any president had previously.

As a constitutional matter, I think this argument and analogous arguments made (less coherently) by Trump administration defenders have things backwards. Congress and not the president is given the legislative power, so outside of certain military and foreign affairs matters it's Congress, not the president, that is elected to get things accomplished. So in any showdown between the president and Congress, if one party can be deemed obstructionist it's presumptively the president.

But my objections to presidential unilateralism go beyond the constitutional. In my view, historically one of the great advantages of living in the United States is that most people did not care about national politics nearly as much as in other countries. This had the advantages of not wasting people's time thinking about politics, allowing people of differing ideologies to get along, and just in general making life more pleasant by limiting the practical importance of elections.

Of course, a major reason people did not care about national politics that much, even if they had strong feelings about particular issues, is that the national government historically had relatively limited powers. But another reason, one that transcended the scope of federal power, was that it our Constitution makes radical change, or really any significant change, very difficult. You need to get a piece of legislation through each house of Congress (each of which has various internal rules that make it hard to do so) and then get the president to agree.

This obviously has its downsides, as it creates a huge status quo bias, and the status quo is often far from ideal. On the other hand, voters could be assured that whomever got elected, Republican or Democrat, major changes were unlikely. This was especially true because until recently, the parties were divided more on geography and the cultural background of their voters than on ideology.

Over the last forty years or so, however, the parties have become strongly divided ideologically, which by itself raises the stakes of national elections; electing a Republican will bring into government a very different group ideologically than electing a Democrat. Moreover, delegation of authority by Congress to agencies gives the president a fair amount of discretion to change policy through his appointments of executive officials.

Nevertheless, the stakes remain relatively limited so long as the president adheres to traditional norms and refrains from major policy innovations without going through Congress. Once the president instead chooses to in effect "legislate" on important matters unilaterally, the stakes get raised substantially, and the U.S. becomes more like parliamentary systems where every election seems like life or death to partisans, inevitably increasing societal tension over ideological and other differences.

So, constitutional structure aside, why is presidential unilateralism bad? Because our system was designed to make major shifts in government policy difficult, and that's a good thing because it lowers the stakes of politics. We had experience in 1861 with what happens when a significant part of the country believes that the national government has become arrayed against it, and it's not an experience we should want to repeat on any scale.

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200 responses to “The Dangers of Government by Executive

  1. Agree with your overall assessment.

    Disagree with “Over the last forty years or so, however, the parties have become strongly divided ideologically, which by itself raises the stakes of national elections;” we’ve had this divide since Day 1 (and to me it’s a feature not a bug anyway).

    And, “…was that it our Constitution makes radical change, or really any significant change, very difficult,” again, to me, that’s a feature not a bug.

    Overall, it really hangs on Congress and whether they (and I mean both parties), can reclaim their constitutional control, oversight, and authority.

    1. Yes, that “last forty years” is a bit blind. FDR was another unitary executive. Teddy and Woodrow. A lot of corrupt politics after Reconstruction ended, on both sides. And before the Civil War, the two or three parties were about as different as possible.

      1. Bernstein is correct, though, that in post-WWII period there was a lot of comity and the parties were very much aligned on core issues, until about the late 1970s. At the time, that there was not “a dime’s worth of difference between the parties” as was famously said, led the major political science organization at the time to argue for political parties that were distinct with specific policy platforms in competition with each other, they called it “responsible parties.”

        Check out this short video of the level of ideological variation of members of Congress and the Senate….each member is represented by a letter designating their party, and you can see how they converged for a time.

        https://www.youtube.com/watch?v=_0TE5TWYP-I

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    2. And to do that, we have to change the incentives for Congress.

      Right now, members of Congress are politically rewarded for enacting their preferred policy or thwarting the other side doing the same. There is no reward for oversight except the political theater kind where you yell at some Executive Branch dupe who sits there for a bit and takes the abuse and then goes back to doing whatever he was doing.

      In fact, taking back control would mean scaling back your policy goals and ultimately hurt you.

      Incentives matter!

      1. It would help if Congress would impeach executive branch officials for breaking the law. In theory, the impeachment power extends to “all civil Officers of the United States”, but according to Wikipedia the only non-judge non-president ever to be impeached was William Belknap, the secretary of War under President Grant.

        1. Because they just resign.

          Congress could continue the impeachment so to ban future office holding but they don’t bother.

          1. Do they? My impression of (current) US politics is that hardly anyone ever resigns, unless the President wants to get rid of them. (Which may or may not be linked to the magnitude of their screw up.)

            In other words, impeachment of other officers would be particularly useful in cases where the executive branch official (allegedly) broke the law, but at the direction of the President.

            1. I did not say they resigned completely on their own. But when it gets hot enough that impeachment is on the table, then they leave because the president can always find a new guy.

              What would really be useful is a revival of the English practice of impeachment over policy differences. But we abandoned that after Justice Chase survived the attempt.

              1. Yes, that sounds like what I had in mind. Let’s please not do that for judges, but for executive branch officials that sounds like an excellent way to restore some semblance of balance of power. (And who cares if they end up resigning rather than being impeached? It’s a win for Congress regardless.)

                1. Sorry, judges too. Especially them because right now there is no check at all

                  1. You mean no check other than appeal?

                    1. Yeah, because at the higher levels you’re likely to get one judge to call out another judge. Can you hold your breath afford your way to the an en banc circuit or SCOTUS appeal? Thought not.

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        2. If Congress would stop delegating authority willy-nilly to the executive…did you ever read the PPA? Gotta be close to 1000 “The Secretary shall determine…” clauses in there that make the HSS Secretary close to omnipotent.

          I don’t hope the Courts stop it, because they’ll have stopped it because it’s Trump doing something stupid and the judges feelz will be hurt.

          I want the Courts to tell Congress: the big fat dummy is simply exercising the powers you idiots gave him. Power that you idiots can and should’ve revoked decades ago. Now stop giving away power to the executive, and there’ll be no power for the President to abuse except what limited powers the Constitution gave him.

          1. Your point is well taken and needs to be reigned in. The Author fails to point out that the last 40 years or so is driven by the Chevron doctrine which effectively made the Excutive branch omnipotent. Courts must defer to the Administrative branch because they are considered experts. As such when Congress defers by saying “The Secretary shall” and then the President rules by decree through that office the right of review is effectively zero. Prior to Chevon that was not an insurmountable burden.

            My fix, reverse Chevron, eliminate Confressional pension and long term perks ( 401k plus health care like the rest of us), outlaw Congressional PACs ( so Senators and House can’t buy power and votes).

            If you take the profit out of service then officials won’t park their butts in Congress to become millionaires or get fat and happy. ( I am not opposed to millionaires but opposed to graft)

            Consider making the house larger under the Wyoming rule where a congressional district is no larger than the smallest one. Makes power more diverse.

            Finally SCOTUS has to fix national injunctions and let the political process solve problems. We have to much government by Executive or Judicial fiat.

      2. There is no capability in Congress for oversight as long as the size of the legislature is fixed at 435 who are accountable in some manner to the people.

        435 was the number of legislators when the exec branch was near non-existent and Congress only really had to craft/argue legislation and each critter represented roughly 80,000 voters.

        Now they each represent 700,000 – with an exec branch that is at least 10x larger as a portion of the economy than it was. Of course they can’t provide oversight. At ‘best’ only their 20,000 staffers can do that – and they are only accountable to the critters and highly corruptible and beholden to DC itself.

        1. They’re not supposed to micromanage ever single civil servant. But how about the political appointees? (Of which the US has ridiculously many, but that’s a conversation for another day.)

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    4. Disagree with the overall assessment. Here’s a defense of unilateral action in this context, there is only one commander and chief and it is he has duty and authority to defend the borders of the United States. Coupled with this Congress has invested with him the discretionary authority to declare a national emergency.

      1. That would be more convincing if the US was actually under attack. Which it isn’t, and hasn’t been since 1945.

        1. What grounds would a court rely on to overturn the declaration? Would all others orders in effect be jeopardized as well? Why would the court act when Congress already has a remedy in place to overturn the order?

          1. First of all, I didn’t say a court necessarily would or should overturn the declaration.

            Secondly, I point you to Lord Atkin’s famous speech in Liversidge v. Anderson (1941):

            I know of only one authority which might justify the suggested method of construction. “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be the master, that’s all.” After all this long discussion the question is whether the words “If a man has” can mean “If a man thinks he has”. I have an opinion that they cannot and the case should be decided accordingly.

            1. Sorry, I was responding to MKE.
              But thanks for the meaningless comment. I will look up the definition of emergency in the statute.

              1. I’ve looked it up, there isn’t one. There’s an emergency when the President says there’s one, unless Congress overrides his declaration, and that’s that.

                1. So the only way we can define words in law, if is the law defines every word itself?

                  Do we not have dictionaries? Do we need to include the Webster’s dictionary in US Code in order for words to have their basic meaning applied?

                  I don’t recall very many definitions of words in the Constitution. How has any of that been upheld without us knowing what words mean?

                  1. Even if the law defines every word, does it also define the words used in the definitions?

                  2. “So the only way we can define words in law, if is the law defines every word itself?”

                    If Congress is passing a statute that delegates some of its most basic constitutional power to the Executive, it would seem a pretty good idea to define everything very clearly.

                2. Pretty much as Brett said “There’s an emergency when the President says there’s one, unless Congress overrides his declaration, and that’s that.”

                  Obama declared an emergency because of blood diamonds from the Congo.

                  The threshold on many of the 30+ emergency declarations seems to have been when some international events were running counter to U.S. interests.

                  The flaw in Trump’s argument is not that he cannot declare an emergency–I think it’s pretty clear he has plenty of statutory leeway to do that, even if the Democrats have a fit about it. The sticking point will be that he has to find other valid laws that grant authority to spend money. The emergency declaration gives the President access to sections of law that are only allowed in a national emergency, but he still has to abide by those sections. He’s got a few likely candidates, but that will have to play out.

                  The easiest thing to do to end this stupidity is for Congress to nullify his declaration, and as I read the Act it requires a 15-day response once the issue is raised. All they need to do is convince, what 15 GOP senators to say “This is not the way, Mr President.”

                  1. It’s not that easy, because Trump has a very high level of support among Republican voters, and the Republican Senators who were interested in retiring already did so last year.

                    They could justify voting for this funding resolution on the basis of averting a shutdown, regardless of the way it goes out of its way to assure border insecurity. They at least have an argument they can make to their voters that the border insecurity wasn’t their goal in voting for it.

                    If they vote to override his emergency declaration, that’s an unambiguous, single topic vote, no potential to shade what they’re doing: Voting to keep the flood of illegals coming.

                    There aren’t enough Republican Senators who could survive the voters knowing they want that, to override a Presidential veto. Heck, I’ve got my doubts that there are enough Democratic members of the House who could survive making that clear to do it; It would be a great way to return the House to Republican hands in 2020, if they tried it.

                    So, they’ll piss and moan, but they won’t try to override. They’ll try to get the courts to do it for them.

          2. I agree the Congressional remedy strongly militates against a court’s interference, as well as other standing objections. But I don’t think we’ll have long to wait until the complaint(s) for injunctive relief are filed.

        2. Understand many may disagree. Good thing we have only one Commander in Chief who can take unilateral action when the borders of the US are threatened.

          1. The borders are not threatened. The immigrants and asylum seekers are not trying to seize US territory, or take political control of some part of the US.

            1. Tell that to La Raza and the Reconquistadors.

              1. Go back to hiding under a blanket.

          2. But he cannot simply take unilateral action. There are some actions which have been pre-delegated to the Commander-In-Chief but the ultimate defense of the border requires a declaration of war – a power that is explicitly reserved to the Legislature.

            1. That really can’t be right as a general proposition. Invading forces cross the border and the President must sit on his hands and wait for that declaration before taking action? No wonder our defenses were so inadequate in Red Dawn.

            2. Under the NEA, there’s virtually no guidance as to what constitutes an emergency. But it does say that once an emergency is declared–seemingly the President has the sole authority delegated to him to determine if he wants to declare an emergency–how said emergency can be terminated. It also provides how what emergency powers can be accessed.

              But it certainly seems that it it completely up to the President what constitutes an emergency.

            3. “NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.) and consistent with section 1135 of the Social Security Act (SSA), as amended (42 U.S.C. 1320b-5), do hereby find and proclaim that, given that the rapid increase in illness across the Nation may overburden health care resources and that the temporary waiver of certain standard Federal requirements may be warranted in order to enable U.S. health care facilities to implement emergency operations plans, the 2009 H1N1 influenza pandemic in the United States constitutes a national emergency. Accordingly, I hereby declare that the Secretary may exercise the authority under section 1135 of the SSA to temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule throughout the duration of the public health emergency declared in response to the 2009 H1N1 influenza pandemic. In exercising this authority, the Secretary shall provide certification and advance written notice to the Congress as required by section 1135(d) of the SSA (42 U.S.C. 1320b-5(d)).”

              1. “given that the rapid increase in illness across the Nation may overburden health care resources and that the temporary waiver of certain standard Federal requirements may be warranted”

                MAY overburdern

          1. What about 9/11? The US wasn’t under attack (in the Constitutional/emergency powers sense) then any more than it was yesterday or is today.

            1. No attack is necessary.

              By the authority vested in me as President by the Constitution and the laws of the United States of America, including
              the Clean Diamond Trade Act (Public Law 108-19) (the “Act”), the International Emergency Economic Powers Act,
              as amended (50 U.S.C. 1701 et seq.), the National Emergencies Act (50 U.S.C. 1601 et seq.), section 5 of the United
              Nations Participation Act, as amended (22 U.S.C. 287c), and section 301 of title 3, United States Code, and in view
              of the national emergency described and declared in Executive Order 13194 of January 18, 2001, and expanded
              in scope in Executive Order 13213 of May 22, 2001, I, GEORGE W. BUSH, President of the United States of America,
              note that, in response to the role played by the illicit trade in diamonds in fueling conflict and human rights violations
              in Sierra Leone, the President declared a national emergency in Executive Order 13194 and imposed restrictions
              on the importation of rough diamonds into the United States from Sierra Leone. I expanded the scope of that
              emergency in Executive Order 13213 and prohibited absolutely the importation of rough diamonds from Liberia.

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  2. “Over the last forty years or so, however, the parties have become strongly divided ideologically, which by itself raises the stakes of national elections”

    I think you’ve got the causation backwards, here. As the stakes get higher voters want people they identify with even more. When those candidates started winning the parties began aligning themselves with those candidates. Reagan and Obama are good examples from both parties.

    1. Or maybe the entire argument is backwards. The ideological range between the parties isn’t that broad – certainly not compared to other First World democracies. There is fundamental agreement on basic principles of economics, domestic & foreign policy. Over the last fifty years Republicans and Democrats have moved towards more common core beliefs, as opposed to the opposite.When that happens the two sides have to create the maximum amount of controversy with whatever disagreement that remains.

      Also remember: The Right today isn’t really a political philosophy or collection of policies. It’s a multi-corporation entertainment industry, with Republican politicians as just extras on the set. If we could get today’s “conservatives” in their own virtual reality world – inside their own exclusive cartoon puppet show – they’d probably be content to leave the rest of us alone. No more reality-TV presidents…..

      1. “The Right today isn’t really a political philosophy or collection of policies”

        Sure, sure. Your side sucks, unlike my side.

      2. I think you’re right about the 1st part, (In regards to the federal level; It’s not so bad at the state.) but the 2nd is just “My party right, other party morons. Ugh!” blather.

        The real problem here is that the Democrats are faithfully representing their base, (This is an insult to their base, but it’s true.) while the Republicans, due to the convergence you’ve identified, are running a bait and switch on their’s.

        1. Or maybe my second point is reflected in this : We’re about to have a constitutional crisis. The president says he will steal billions of dollars against legislated Congressional appropriations – against the majority view of the American people – after a bruising political fight in which Trump’s view lost.

          And why? Because of a “national emergency” which only became an emergency because Ann Coulter ragged on Trump. When a hack like Coulter can create a “national emergency” out of whole cloth, that’s the cart before the horse, entertainment over governance, politics as pro-wrestling : Donald John Trump.

          If it’s any consolation, Democrats show every indications of following the Right’s marketing strategy.

          1. You really think Coulter complaining has anything to do with this? That’s like thinking the remora steer the shark.

            Trump campaigned on a wall in the primaries, in the general election, a week doesn’t go by without his talking about it, and you’re actually silly enough to claim he’s only doing this because of some pundit?

            1. Brett, that’s fact, not conjecture. Before the shutdown DJT said he would sign an appropriations bill without objection, took brutal criticism from Coulter (and Limbaugh, to be fair), and then immediately reversed himself 180 degrees. As in the very next day. Government shutdown and this joke emergency both sprung from Trump’s panic – fear over the rants of radio hacks.

              Yeah, he talked about it for two years – while doing nothing. What does that tell you? This “emergency” isn’t a jot more real than his promise Mexico would pay for the wall. Talk and promises as puppet-show entertainment for the base.

              Even now there’s almost zero chance this “emergency” crap is more than a stunt. The House will vote to rescind the emergency; the Senate will then be required to vote within 36hrs. I bet Trump doesn’t even win a majority there; even GOP Senators will grow a spine when their own constitutional powers are at stake. Even allowing a veto, what will the SOUS make of that?

              It’s all just entertainment for the Right’s base, nothing more.

            2. Brett, that’s fact, not conjecture. Before the shutdown DJT said he would sign an appropriations bill without objection, took brutal criticism from Coulter (and Limbaugh, to be fair), and then immediately reversed himself 180 degrees. As in the very next day. Government shutdown and this joke emergency both sprung from Trump’s panic – fear over the rants of radio hacks.

              Yeah, he talked about it for two years – while doing nothing. What does that tell you? This “emergency” isn’t a jot more real than his promise Mexico would pay for the wall. Talk and promises as puppet-show entertainment for the base.

              Even now there’s almost zero chance this “emergency” crap is more than a stunt. The House will vote to rescind the emergency; the Senate will then be required to vote within 36hrs. I bet Trump doesn’t even win a majority there; even GOP Senators will grow a spine when their own constitutional powers are at stake. Even allowing a veto, what will the SOUS make of that?

              It’s all just entertainment for the Right’s base, nothing more.

            3. (I hate double posts. Apologies)

              1. This one deserves to be read twice.

                1. It really doesn’t.
                  It’s a collection of progressive talking points (so, almost a guarantee of inaccuracy) and fantasy (but I repeat myself).

        2. Trump is the result of a backlash to the Republican bait and switch. The days of that GOP strategy may be numbered.

      3. I think the argument is starting from wrong principles. It’s the increase in federal power which drives interest in national politics. It’s not that voters have become more ideologically divided, it’s that those ideological divides *matter more* because Washington can wield more power which affects voter lives.

        Now, to the extent that parties have apparently shifted ideologically, it’s not necessarily the case that the voters shifted. That increased concern about national politics also manifests in elections for national office within the party, because factions within the party (and both Ds and Rs are big tent compromise parties) fight each other for control of the party narrative. When power in Washington is low, there’s less need to have major in-party fights, because it doesn’t matter so much. As power in Washington increases, it’s increasingly important that your party’s candidate comes from your wing of the party, because those intra-party differences matter more.

        (Note: the increasing self-sorting of Americans by political belief in everything from where they live to what leisure activities they like increases the apparent power of Washington to voters, because it is easier to use power to target political groups you disagree with).

        ie, at the end of the day, it’s all about power. Washington has grabbed too much. That’s the primary cause of toxic politics. Particular flashpoints are just proxy wars.

        1. The Civil War is something of a counterexample to Squirrelloid’s thesis. Also the 1930s. We’ve been pretty divided over politics before; it doesn’t seem correlated to the size of government.

          1. Both of those are pretty well covered under the impact of Washington power on voters (or at least particular influential groups thereof). Those particular uses of power created flashpoints around issues related to how that power was used. Also, both were definitely associated with power grabs by Washington.

            There’s no magic measuring stick with a single answer for how much power Washington should be allowed to have. Rather, politics become toxic when there’s a mismatch between reality and what voter’s find too high. That second is subjective and can change over time, either abruptly in response to a crisis, or gradually as voters bear the brunt of government wielding that power in ways contrary to their interests.

            So no, they’re not counter-examples.

            And my thesis should really be uncontroversial. Increased power makes who uses it matter more, because they can do more with it. The contrary, that voter investment should be indifferent to how much power elected officials wield, would be shocking if true, and very much in need of good analysis to prove it (which you most certainly have not done).

    2. I’d say the causation was because one group or another tried to split off and came back a few steps when the perceived a potential advantage. This benefits the extremes as they are more partisan while the vast middle is left to pick the lesser extreme. That worked in the blue team primary but not so much in the red team primary and I feel the overall mean won the day a few years ago.

  3. Agreed on the general principles you stake out. I only disagree with the idea that Trump alone doesn’t get to abuse these powers. (Yes, I realize you didn’t say that.)

    I want the President (And Congress!) reined back by law, not just TrumpLaw.

    Repeal the Emergency Act, don’t just judicially deny Trump use of it.

    As it is, no matter how bad an idea the Emergency Act is, it’s been upheld for other Presidents, and Trump appears to be on solid legal ground using it himself. I don’t want special rulings just for Trump, which will magically go away as soon as some other (Democratic, of course!) President is in a position to abuse these powers.

    I’m concerned that the goal here is not to accept that the balance of powers has been horribly skewed in favor of the executive branch, and fix that, but instead to just treat Trump as some kind of special case, after which things can go back to normal. That seems to be explicitly what Democrats, and Trump’s foes in general, want to do.

    We must oppose that, and demand a fix to the real problem, or nothing at all.

    1. In short :

      I know this is wrong.
      I know I’d shriek bloody murder if a Dem did it.
      But Trump, so never mind.

      1. In short, I’m not going to give up an opportunity to fix this problem, just because Democrats would prefer to just deal with Trump, and preserve the illegitimate powers he’s exercising for their future use.

        1. That’s why we make certain changes to the law, particularly changes in electoral laws, with a start date some way away in the future. So that no party can know whether the change will benefit them or hurt them.

          Anyone up for a Constitution 2030 project?

          1. I’m up for a constitutional convention. Might take to 2030 to get it finished.

            1. Hmm.. Best make it Constitution 2040 then. (Or 2050. Nice round number, with another 10 years thrown in for ratifications.)

      2. Right, so you should be on board with yanking that power from everyone, not just Trump.

      3. No, I don’t think that’s what Brett said at all, nor many people here.

        I don’t hope the Courts stop it, because they’ll have stopped it because it’s Trump doing something stupid and the judges feelz will be hurt.

        I want the Courts to tell Congress: the big fat dummy is simply exercising the powers you idiots gave him. Power that you idiots can and should’ve revoked decades ago. Now stop giving away power to the executive, and there’ll be no power for the President to abuse except what limited powers the Constitution gave him.

        Congress, not the courts, needs to rein this in by a) overrulling his declaration (like the law permits/demands). Then b) start serious movement to retract the power they’ve given away to the Executive over that last 50 years. A side effect of b) would be a large paring down of regulatory overreach that happens because Congress handed over the keys to some cabinet member or the Preident.

        1. Your second paragraph reminds me of a great Scalia comment. He said he wanted a stamp for the end of certain opinions where he wanted to say.

          “Stupid but Constitutional ”

          Congress seems to hope the Courts will save them from themselves or legislate shit they could never pass if put to a vote.

          An example is the Affordable Care Act.. if the mandate was a tax in the bill it fails miserably.

    2. Yes, exactly. The left will do what its wants regardless. The idea that this is “setting a precedent” is ridiculous.

    3. I don’t see a problem with courts saying: we’re perfectly capable of assessing what constitutes an emergency. This isn’t it, nor is it “whatever the president says.” There might be one in the future, but it’s going to be a heavy lift.

      1. When courts are as populated by political ideologues as they are now, what you’ll get is zig-zag rulings on what constitutes an emergency based on which party holds the court majorities.

      2. I see a problem with it, which is that they’ve got no statutory basis for saying that. The statute assigns that judgment to the President, not the judiciary.

        1. It doesn’t take judicial review of the emergency declaration away from the courts, and statutes aren’t viewed as doing that unless they say so expressly.

          1. I’m not saying it isn’t going to be enjoined by some random 9th circuit judge. Of course it is.

            I’m just saying the statute itself does not define “emergency”, and just leaves it up to the President to decide when there is one, subject to reversal by Congress. That doesn’t leave a lot of basis for saying that the President has acted wrongly.

            So the decision enjoining it is going to be a real joy to read. “I say there’s no emergency, and since I’m a judge, not a mere President, I win.” only wrapped up in a bunch of obfuscating rhetoric.

            1. So the decision enjoining it is going to be a real joy to read. “I say there’s no emergency, and since I’m a judge, not a mere President, I win.” only wrapped up in a bunch of obfuscating rhetoric.

              ^^^
              This.

            2. No, actually, Congress knows how to prohibit judicial review of federal actors’ decisions. It says things like “no court shall have jurisdiction to review…” Courts consistently hold that they have the power to review unless Congress has said otherwise. It didn’t say so here. And “emergency” isn’t some mystical code that only the President can understand.

              I don’t think it’ll be terribly hard for the court to write that decision. It might, say, start out by noting that the President acknowledged, in the very same speech, “I didn’t have to do this,” and seemed to point to the wall as a campaign gambit (“I’ve already done a lot of wall for the election–2020.”). But sure, right, only a partisan judge could possibly rule against Trump.

              1. For a court to legitimately say “this isn’t an emergency”, they’ll have to agree, that the 31 still in effect, are.
                Have you read the list of existing “states of emergency”?
                Most of them invoke “blocking property”. What does that even mean?

              2. The Obama administration insisted the Mandate was a penalty not a tax until it got to the USSC. Then they argued it was a tax The Court had no problem with finding it to be a tax despite the prior insistence.

            3. It’s almost like words have no meaning, right?

        2. I have no problem with the courts judging if an emergency declaration is a legitimate emergency. I mean judge is literally their job title.

          There are many conceivable scenarios where the executive needs to take rapid action that would not normally be allowed by statute, and there’s no time for a proper statute to be written. Hence, an emergency.

          The only line we need to draw here is the President can’t decide that congress denying him money for a campaign item is an emergency.

          1. 0blama didn’t even bother to invoke his emergency powers to implement DACA, which was a direct contravention of the Senate rejecting the “Dream Act”.
            And there was a direct cost included in DACA, for the registration of applicants and the issuing of work permits, that were not part of any phony “prosecutorial discretion”.
            Funny how the commies have such short memories about executive action – the pen and the phone – “when the Congress won’t act”.

            1. I never have understood this “pen and phone” paranoia.

              Is there something wrong with calling people to try to get something done? Anything wrong with signing a legal executive order?

    4. Repeal the Emergency Act, don’t just judicially deny Trump use of it.

      I think what you mean is, “don’t require Trump to actually follow it.”

      And the idea that repeal of the NEA is even an option during the Trump administration is laughable. Say such a repeal could get through Congress. Does Trump sign it? No, of course not. What then, genius?

      It’s the most obvious concern troll ever.

      As it is, no matter how bad an idea the Emergency Act is, it’s been upheld for other Presidents, and Trump appears to be on solid legal ground using it himself.

      “Solid legal ground,” according to whom? You’re notably always wrong on any substantive legal question I’ve ever seen you opine on, so why is that any different here?

  4. Tl;dr, a US-style presidential system is a disaster that’s crashed and burned everywhere it’s been tried including, arguably, the US.

    Wasn’t it New York state that went something like the better part of a decade without an actual budget? Just nothing but permanent gridlock?

    1. “including, arguably, the US”

      Richest most powerful nation ever. Saved Europe twice in a century.

      But failed executive. Ludicrous.

      1. Yeah, “failed” is a bit of hyperbole.

      2. The most important failure I had in mind was the Civil War.

    2. New York state is much like Europe. Blindly accepting of government power.

      1. Dixit Wikipedia: From 1984 through 2004, no budget was passed on time.

        1. Not sure what happened to the rest of my comment. But what I was saying was that in Europe we elect one or more parties to run the country, who then have the power to pass budgets. Which is what democracy is supposed to look like.

          1. Budgets are not important here. Its appropriations that matter.

            We also have two equal houses so part of the gridlock is there.

            Its the way we want it.

            1. O, sorry, I used budget and appropriation as synonyms.

              And “it’s the way we want it” is exactly the problem. A system that’s set up to produce gridlock produces two things:
              – Everyone, and particularly the executive branch and the courts, constantly pushes the boundaries of their constitutional power. Cases like Roe v. Wade and Obergefell v. Hodges are a symptom of American constitutional dysfunction just like DACA and Trump’s wall are.

              – Elected politicians have a neverending list of other politicians that they can blame for the fact that they didn’t keep their campaign promises, thus ameliorating prof. Somin’s beloved rational ignorance problems. That’s the point of the UK system (which has its own problems): you know exactly who to vote for if you hate something the government did or didn’t do.

              1. Your second paragraph would be interesting if it was accurate. Unfortunately for your point it isn’t. Both Roe and Obergfell had to do with State laws that the litigants alleged were in violation of the Constituiton. Had nothing to do with the acts of Congress or President. Our system is all about diffuse power. Local and State governments used to make almost every decision that impacted day to day freedoms and commercial activity and that is they way we wanted it.

                Now the Fed government makes almost all decisions nationally or intervenes to undermine local authority. The bathroom bills are a perfect example of not allowing local people to sort through social and politically charged concepts. Does anyone really think the DOJ needed to come down like I ton of bricks on Charlotte NC? Social and political pressure would have addressed that issue ( one way or another in a few weeks).

                By coming in with the ” one true answer” on all kinds of murky topics undermines freedom and autonomy. Governing is not pretty, it has to wax and wane and morph to achieve consensus. Executive and Judicial fiat is closer to tyranny.

            2. Budgets are not important here. Its appropriations that matter.

              Which is stupid.

          2. Europe’s problem is they’re too deferential to government and don’t limit it enough.

            Gridlock is not an ‘error’ or a ‘failure’. It’s *by design*. The US was created to prevent any one group from achieving a monopoly on power and getting to do what they wanted with that power UNLESS popular support was so strong that it could overcome all the checks and balances.

            The government that governs best governs least. Making it hard for government to do things helps keep government in check.

            No, the failure of the US political system is stuff like the PATRIOT Act or PRISM. Turns out it’s *too easy* to get enough popular support behind terrible government overreach.

            But the US is not a Democracy. It’s a republic. The founding fathers wisely saw that Democracy is just mob rule, and that you can’t just allow the majority to do whatever it wants.

            1. Yes, I get that it’s by design. I’m just saying that it’s a stupid design.

              1. I disagree. Letting the government do whatever it wants is stupid design. Forcing government to find massive public support before it can act is the single best design in governance ever achieved.

                The failures in the US government system have nothing to do with checks and balances, but have to do the dismantling of those checks and balances (primarily with Congress voluntarily giving away its power to the executive). The US would be in better shape politically (and probably economically) if presidents over the last 40 years had been able to do less.

                1. That’s like saying the beach is great, and that any discomfort is due to the sand and the sun. The two are inextricably linked. You can’t act as if “the dismantling of those checks and balances” somehow fell out of the clear blue sky. It’s an unavoidable feature of the system.

                  1. Checks and balances and making it very difficult to make big changes i.e. expanding government, in an attempt to forestall dictstorship, is a feature of the system.

                    “Working around” those, defeating them, shrugging off your powers to another branch because you’re more afraid of being blamed for failure than taking a rism for success, these are historical inevitabilities leading to dictatorship.

                2. Forcing government to find massive public support before it can act is the single best design in governance ever achieved.

                  Check with Poland.

          3. How is that working out for Spain at the moment?

            1. Just fine. Again, there are many problems in Spain, and there constitution isn’t working very well, but it’s not the democracy that is the problem. A large majority of Spanish voters want an aggressive approach to Catalunya, and that’s what they’re getting.

          4. When a European tells us what a democracy should look like I have a two word retort: The EU?

          5. “This is what democracy looks like” is a popular chant among our progressive youth.
            Which means it’s code for totalitarian Marxism.

    3. idk, i think the UK is proving how parliamentary systems can fail *at least as badly* right now.

      1. Not really. Voters voting for stupid things and politicians then implementing it is not a failure of democracy, but a failure of voters.

        1. Don’t you mean politicians *failing* to implement it, because too many of them aren’t willing to do what the voters voted for? It isn’t Brexit itself that is necessarily a failure, it’s the political implementation and parliamentary debate that’s a failure. The voters didn’t fail (they successfully communicated their desires to the government), the parliament continues to fail.

          One could also point to France’s yellow vest protests as another failure of parliamentary democracy.

          And that’s ignoring Europe’s gross deference to statists, which is arguably the biggest failure here.

          1. The people voted for Brexit, and that’s most certainly what they’re going to get. Still not seeing the failure of democracy.

            As for France’s yellow vests, that’s a failure of presidential democracy, rather than parliamentary. In the French Fifth Republic, the president has so much power that the only way to stop him is through the streets. Which is then invariably what happens when, for each successive president, the initially sky-high expectations are disappointed.

        2. And more generally, voters voting for stupid things is a failure of democracy. Checks and balances makes it harder for voters who vote for stupid things to actually have those stupid things occur. Allowing bare majorities to dictate major national decisions is most definitely a failure of democracy.

          1. That’s certainly a unique perspective on democracy…

            1. Unique? i’m pretty sure that’s in-line with Churchhill’s ‘Democracy is the worst form of government, except all the others that have been tried’ line. (Paraphrasing from memory).

              Do you honestly expect voters to never vote for stupid things? You have far more faith in humanity than I do. I’d say at least 50% of things voters want are stupid, and I’m probably being generous.

              1. I do think voters vote for stupid things, which is why I like my democracy embedded in a system of rule of law, with human rights, separation of powers vertical & horizontal, and all the other bells & whistles. And no referendums, because that’s too much democracy. A referendum got the British into this mess exactly as you’d expect. But that simply means that the British problem is one of too much democracy, rather than too little.

            2. “When the people find that they can vote themselves money that will herald the end of the republic.”

              Pretty sure the slow wheels of gridlock were a design feature. Eroded markedly when the tension between the Senate and House was modified by the 17th Amendment. Prior to which Senators were more beholden to state legislatures and governors than the people, whereas now they are little more than second-level representatives of the common people rather than their State as an entity.

              And more worn away by laws that consistently delegated more and more authority from Congress to the Executive. Especially where Congress passes a law that says “We need X; Executive make the rules and regulations that define X.” with little oversight once the Weed Need X bill is passed.

              1. “When the people find that they can vote themselves money that will herald the end of the republic.”

                You mean like Bob Corker?

          2. I would add to Squirrelloid’s comments that the 1913 ratification of the 17th Amendment has had much to do with the general destruction of the original design of those checks and balances BETWEEN the two houses of congress as well as between the legislative and the executive branches.
            When the 17A made election to the senate a popular vote instead of state appointment, it duplicated (and intensified) the incentive for passage of laws that appeal to the individual voters who want (as an economist might say) “…concentrated benefits and dispersed costs,” as a means of attracting election and re-election votes.
            It also destroyed the several states’ check on laws that they judge to be detrimental to and/or destructive of their sovereignty. Remember that the federal government was a compact among the sovereign states (actually, the People as expressed through the states); it was not an overlord except in very strictly restrained matters deemed of joint and several national importance and best handled at that level.
            Yeah — it was a great design, but that’s not what we’re dealing with at the present time….

            1. Remember that the federal government was a compact among the sovereign states

              Remember that most states are the creation of the federal government, not the other way around. Few ever had any independent sovereignty.

              As for the 17th A., per Wikipedia it was ratified by 41 states, and rejected by only one, so I guess the state legislatures were not as terrified of it as you think they should have been. The objections to it are largely nonsense.

              1. How are the objections to the 17th nonsense when it was specifically created to grant more power to the federal government at the expense of the states, while the entire purpose of the Senate was to safeguard the states retaining significant power?
                Your objection to the objections is little more than cover for not having an argument.
                The 17th changed the Senate from a republican (little r) body functioning to balance regional interests to a body beholden to the mob and incentivized to consolidate power centrally in the federal government.
                It is perhaps the amendment most antithetical to the fundamental purposes of the constitution.

        3. “Not really. Voters voting for stupid things and politicians then implementing it is not a failure of democracy, but a failure of voters.”

          I think I’ll quote you here. “That’s like saying the beach is great, and that any discomfort is due to the sand and the sun. The two are inextricably linked.”

    4. Didn’t Belgium go over a year with only a caretaker government just a few years ago?

      1. Yes, and it was still run better than the US has been at any time in the last couple of decades. (In fact, not having a government for more than a year probably spared them some serious austerity and helped their GDP growth by several tenths.)

        The country kept working because the federal government is only one of a number of levels of government in Belgium, and because parliament and the caretaker government continued to work together to keep things ticking along.

      2. Yes, and it was still run better than the US has been at any time in the last couple of decades. (In fact, not having a government for more than a year probably spared them some serious austerity and helped their GDP growth by several tenths.)

        The country kept working because the federal government is only one of a number of levels of government in Belgium, and because parliament and the caretaker government continued to work together to keep things ticking along.

  5. On the forty years issue: as recently as 1976, it wasn’t clear which major party candidate was running to the “right” or “left” than the other.

    1. Arguably the period of the Dixiecrats and the Rockefeller Republicans was the exception rather than the rule in US history.

      (And during other periods the labels “left” and “right” might not have fitted very well, but there was still strong polarisation between the parties.)

      1. Who was more liberal/conservative or left/right: Teddy Roosevelt or Woodrow Wilson? Grover Cleveland or Benjamin Harrison? John Davis or Calvin Coolidge?

        1. Who cares? The relevant fact is that they hated each other with a passion.

          1. “Over the last forty years or so, however, the parties have become strongly divided ideologically, which by itself raises the stakes of national elections”

            How does the fact they hated each other rebut the point that they were not strongly ideologically divided?

        2. More conservative: Woodrow Wilson, Benjamin Harrison, Calvin Coolidge. You’re welcome.

          1. But I do agree with Prof. Bernstein here.

    2. Goldwater? Humphrey? McGovern?

  6. “I hope the courts stop it.”

    A single district court judge being able to overrule the president on a national emergency is worse than the declaration itself.

    Congress can pass a resolution by a veto proof majority cancelling it. If they can’t then I guess the emergency statute should have not had been passed in the first place.

    1. You might need to catch me up: Congressional resolutions have the power of law now?

      1. In this case the “resolution” IS a law. Has to pass both chambers, and be signed by the President, or his veto be overridden by supermajority vote.

      2. Depends on the type of resolution. Most are just advisory but there is a type, like under the War Powers Act, that if they pass both houses and signed by the president, act to do something.

        An example is that Congress can repeal an executive agency regulation by resolution within a time limit if the president agrees or veto overridden. Used quite a bit in 2017.

        The House just passed a resolution that ends US aid in the Yemen war. If the Senate also passes it, then it goes to the President who will veto. Did not pass the house by nearly enough to override.

  7. The difference between Trump and Obama in this case is the Donald is employing a frequently used law of Congress while the Barry’s decrees (especially imposing Obamacare and DACA) were direct violations of laws of Congress.

    While we can have an interesting discussion of whether Congress has the power to allow POTUS to reallocate the use of previously appropriated spending, the answer to which is not at all clear under the text of Article I, there is no real analogy between Trump and Obama here.

    1. in this case is the Donald is employing a frequently used law of Congress while the Barry’s decrees (especially imposing Obamacare and DACA) were direct violations of laws of Congress.

      Trump’s citing a law but using it in a new way. Obama actually had a law giving him broad discretion over immigration decisions. I think Trump’s leaning on that same law with his Muslim Ban-not-a-ban-yes-a-ban.

      1. Many of the emergency declarations were using it in a new way. When the blood diamonds were banned, the law was used in a new way. When the H1N1 flu hit, the emergency declaration was a first of its kind. When it was used to prevent “Chemical and Biological Weapons Proliferation” it was a first.

        The first time it was used to “Blocking Iranian Government Property” and “Further Prohibitions on Transactions with Iran” it was novel, even though that appears to have become the leading factor for declarations, many of which are supposed to be “Prohibiting Trade and Certain Transactions…”

        Novelty or flimsyness of excuse is not really the issue here. It seems he has broad authority to say it’s an emergency even without reasons. It’s up to Congress to rein him back when there’s no real emergency. The very real specter of getting bitchslapped by Congress is supposed to be enough to prevent stupid declarations…but Trump doesn’t fear that.

      2. 0blama may have had discretion to prevent deportation of the DACAsses, but he went beyond his powers to formalize them as an entity, allocate the funding to register them, administer them, and hand out work permits.
        And that “discretion” was already in place, since there was no real effort to remove these law-breakers from the country, at the time.

    2. whether Congress has the power to allow POTUS to reallocate the use of previously appropriated spending

      Which branch has the power of the purse?

      1. Remember when Obama did shit like this and the left supported it? And a whole bunch of people told you that you were going to come to regret the precedent when someone else was President and that some day the bill would come due?

        Well, here’s the bill.

        1. And 0blama didn’t even have to resort to declaring an emergency.
          President Pen and Phone clearly stated that “If Congress won’t act, I will”.
          Ant the rest of the commies bowed down in praise.

      2. Which branch stupidly delegated that power to the Executive branch?

        The Emergency act may be a terrible idea, but it’s a law passed by Congress that says Presidents get to do things like this.

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  9. The problem rests with both sides, though I’ll mostly talk about Obama and not at all about actions that should be taken by the GOP right now with Trump.

    Partisanship man. It’s bad, but it kinda absolves my side of any blame in policing itself. Lets lament both sides, shall we?

    1. NO!!!

      Partisanship is not bad!

      Just the opposite – we need it.

      It facilitates flexibility in our political system; keeps politicians on their toes, and allows issues to be tested and decisions modified if needed.

      It IS the secret to our longevity and success.

    2. “Partisanship man. It’s bad, but it kinda absolves my side of any blame in policing itself. Lets lament both sides, shall we?”

      You are an insufferable douchebag and routinely admit that you have little interest in policing your side.

    3. I can tell by the smirk on your face that you really mean, “Orange man bad.”

  10. Well, I disagree with complaint about Trump declaring a national emergency as has plans to do. In this case, there is no valid reason to not support Trump. the Democrats have voted for border security recently and continuously. What we have here is not some realistic disagreement over policy. What we have is merely a “get Trump” mentality. So, I believe he is quite valid in hos use of the national emergency statute.

    1. As long as I can say the other side is bad, everything my side does is okay!

  11. David:

    My only disagreement is that this problem rests solely on congress. They should have never granted emergency powers in the first place. The only area where emergency powers makes any kind of sense is in a first strike military situation. Outside of that, remove the provisions. Congress needs to act.

    1. The Democrats in Congress could have avoided this by engaging in good faith negotiations. They decided to placate their base with the whole “walls are immoral” (except if you are Israel then not only are walls OK but you get unanimous support from Congress). Trump had to do what needed to be done. That is why the people elected him and that is what he did. The democrats in Congress had their chance. They chose to sit on their hands. So be it.

        1. The ICJ is contrary to international law. Can’t think a more illegitimate body then that.

        2. Oh noes, the ICJ How many divisions does it have?

          Terrorist attacks dropped 95% Jews are not going to die because of what the ICJ says.

          1. My mistake. Sometimes I have the delusion that this is a legal blog.

        3. “international law”

          That’s your first mistake right there.

  12. Maybe congress will repeal some of the laws that grant this emergency authority.

    Do any of these people opposing Trump’s action ever learn anything? Or will they be back in love with unilateral executive authority as soon as it’s back in “friendly” hands? I think we all know the answer.

    1. Yes, that sounds like a bill that the President is definitely going to sign into law…

      1. You think the Dems will even pass it? Or are they complete charlatans? They could add it to the debt ceiling if they were serious.

        What they’ll actually do is stage press events and say they’re “fighting” when they’re actually doing nothing. Because they never actually do anything except try to spend (and pocket) money other people earned.

        1. It sounds like it would be the Democratic equivalent of those Obamacare repeal acts that the Republicans used to pass every other week. More dysfunction.

        2. Democrats are the ones who passed it in the first place.

  13. The Demonrats lost this one big time. Trump out trumped them again. Now they look like a bunch of fools AND we get the wall. Trump 2020!!!!

    1. Is that why Republicans are reported to have devoted Thursday afternoon to trying to calm a Trump tantrum in which the president threatened to refuse to sign the bill?

      1. Only Arty Cuckland would believe this fake news. Let me guess Cuckland you also respond to emails from African princes who just need you to launder a million bucks for them, right?

        1. You spend your days (1) muttering about all of this damned progress in America and (2) obeying my preferences — like the obsequious, disaffected, all-talk, faux libertarian wingnut you are, Jimmy.

          I am content.

          1. What are you even talking about Cuckland? Have you been drinking again?

    2. When does Mexico start paying for it?

      1. Having them pay to house the herds that they let through their southern border is a great start.

  14. Professor Bernstein’s analysis seems persuasive.

    1. His analyses usually are. . . just not always in the right direction.

    2. I have no issue with it, though I note that DACA is posited as one of a series of BHO’s overreaching actions, though the list seems to be truncated at one. (I would not place the deferral of ACA components’ effectiveness in the same category).

  15. Generally agree, but major radical change that is entirely within the legitimate executive function needs to be made MUCH more easily achievable. The administrative state has grown into a fully unconstitutional monstrosity that largely runs all aspects of the federal government, with only minimal oversight and control by elected representatives whether the President or the legislature. It’s virtually impossible for most federal employees to even be fired or laid off. The intelligence agencies have become untethered entities unto themselves, pursuing their own interests and even trying to effect a coup against this President.

  16. “For example, Obama, like Trump, was stymied by Congress on his preferred immigration policy, so he used his broad statutory authority under the immigration laws to resolve the “Dreamer” issue indefinitely, using that authority far more broadly, more consequentially, and in more direct defiance of Congress than any president had previously.”

    A massive differences here, of course, is that the federal courts, to this day, are not only upholding Obama’s gross abuse of executive authority on DACA, but have shamefully prevented Trump’s reversal of this unconstitutional policy!!

    We heard over and over from open borders ideologues, whose legal conclusions conveniently always support their open borders agenda, that Obama’s DACA was constitutional in part because it could be easily reversed by future administrations. Well, well, well.

  17. equally upsetting is the extreme politicization of the Judicial Branch and Mitch McConnell’s personal destruction of the norms of the Senate.

    1. The judicial branch was weaponized as early as the 1950’s and that was by liberals.

      Also, not sure what “norms” you are talking about in the Senate, but if anyone destroyed the usual comity enjoyed in that body it was Harry “Balls” Reid.

  18. It’s actually pretty simple.

    Congress already GAVE power to any sitting POTUS to declare national emergencies and channel funds in this way. So to claim that it’s unconstitutional or running an end-around congress is wrong. Congress expressly granted him this power.

    If you don’t like that fact, then congress must reverse these laws which grant them in the first place.

    1. Well, either that or we could ask that the President please only declare an emergency when there actually, you know, is an emergency.

      I already quoted Lord Atkin’s famous reference to Humpty Dumpty above. Words have meaning, and Congress is entitled to expect that the President should use words in vaguely the same meaning as every other speaker of the English language.

      1. One man’s emergency is another’s opportunity. (to remake national demographics for a permanent electoral majority in favor of socialism and racial identity politics)

      2. Then you’ll have to justify all the past, and still existing, “emergencies” as fitting the definition you prefer.

  19. FDR introduced pure socialism into America. We are now reaping the rewards.

  20. I think we are all ignoring the obvious fact that Trump knows this will get shot down. he wants a way he can tell his supporters, I did my best, I tried everything, and Congress is responsible for stopping me. And if Congress by some stretch drops the ball, he gets his wall – its win win for him.

    For everyone else, we either get a wall, or we get a scalled back Executive.

  21. Perhaps Congress should not be giving him all this authority, and then funding it too.
    Put the Executive Branch on K-rations.

    1. No, Shut down the venal yet feckless Article 1.
      Not possible?! Then be grateful the alternatives are not worse.
      The Constitution grants the president his authority and hey presto! it’s just what’s needed because of the Founders’ brilliant foresight regarding fecklessness-by-committee.
      See?!

  22. No.
    Trump is the honey badger of politics. Under the relentless pressure against decency, he is the evolutionary response. The nightmare of the left and salvation of the Republic.
    This is the necessary result of Congressional abdication.
    War powers and Executive action mean the nation responds in a timely manner while Article 1 figures out its interests and acts for itself interest.
    Thus is the nation assured a timely response despite feckless politicos. Do not expect anything more,
    Be grateful the Founders allowed for such human failings,
    And most especially thank the Lord that we have men required to rise to the occasion.

    1. Equating Trump with “decency” is the funniest thing I’ve heard all day. Thanks, Robert!

      1. I assume you mean “fetor of decomposing flesh” funny, not “ha ha” funny.

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  24. “We had experience in 1861 with what happens when a significant part of the country believes that the national government has become arrayed against it, and it’s not an experience we should want to repeat on any scale.”

    But the government *had been* arrayed against a significant part of the country – the pre-1861 Democratic administrations put themselves firmly on the side of the slave interest. The people who didn’t like slavery could either swallow their objections or resist with the possible consequences.

    This is the most dramatic example of the country getting into a position where there’s no consensus-building way out of a crisis. Anything designed to address the problem would be divisive.

    1. Wasn’t it the people who liked slavery who resisted? I don’t recall an abolitionist secession movement.

  25. Wow. This one brought out some serious nutjobs.

  26. Yeah, but john brown did some pretty serious resisting.

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  30. Everybody just calm down. 12 million unauthorized immigrants living in this country is not an invasion. 50 thousand crossing monthly is not an emergency. There is no way this will fly.

  31. I’m so conflicted. Would I rather that my nation’s policies were spearheaded by a politician that at least I had the opportunity to vote for or against… or ramrodded through a legislature by a cabal of politicians from remote areas of the country who never appeared on any ballot presented to me?

  32. It has been a long, long time since we have had representative government. I don’t see things getting better either.

  33. It’s great to see the left finally understanding separation of powers; it would be a hoot to see their heads explode if Trump quoted “I have a phone and a pen”. Too bad that they won’t remember the lesson any longer than it takes to get a democrat into the White House.

    1. Just because Trump doesn’t use those exact words that seem to have turned all of you rightwing assholes into hysterical lunatics doesn’t mean he’s a small-government champion.

      How about complaining about what the current president is currently doing, instead of sniping at “the left” like a fucking FOX addicted mouth-breathing moron?

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