Donald Trump

Madison Wept

And the senators said to the president, "pretty please?"

|The Volokh Conspiracy |

Sen. Mike Lee came up with a quite reasonable bill to curb presidential discretion to declare national emergencies and make Congress more affirmatively responsible for the actions that might be pursued during such emergencies. It might not be perfect, but it would be a significant improvement to the current statutory framework, a reasonable check on presidential abuse of emergency powers, and a step toward having Congress assume its proper constitutional responsibilities. A companion bill was introduced in the House by Rep. Andy Biggs. Such a reform should have been passed long ago, but it often takes an abuse of power to generate the political will to curb power. And sometimes that isn't even enough.

In the House, Speaker Nancy Pelosi declared that there would be no vote on any such legislation. For Pelosi, as for everyone else, partisan point-scoring is more important than reclaiming congressional power. The Republicans hardly covered themselves in glory, overwhelmingly voting to support the president's emergency declaration that was obviously made in bad faith and clearly abused the discretion that Congress had entrusted to the president. Unwilling to vote to override a promised presidential veto, Republican legislators are ill-positioned to seek bipartisan support for prospective reform to advance the interests of the institution and constitutional sensibilities.

Meanwhile, in the Senate, Republican legislators abandon Lee's plan because the president won't embrace a restoration of congressional authority. The senators require the president's permission before supporting the authority of their own institution.

But Trump decided against curbing his own presidential power, GOP senators said. . . . "This president, like any other president, is not going to give up power that Congress has given him in the past. It's been there since the 1970s. Why would this president give it up?" said a Republican senator who requested anonymity to talk about internal discussions.

Apparently the Founders forgot to provide in the Constitution any mechanism by which Congress might override a presidential veto. Oh, wait!

James Madison once wrote a fantasy novel. I always liked this passage.

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

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134 responses to “Madison Wept

  1. Madison, with all due respect, doesn’t seem to have anticipated the enormous political appeal of buck-passing.

    1. With all due respect, at the time, you could still call the miscreant to the field of honor.

      1. Madison was an imbecile.

        1. I’m not sure I’d go that far, not when we compare him to other constitution-writers and would-be constitution-writers, and political editorialists.

  2. Lee’s bill is exactly the type of bill needed, and this is exactly the type of situation it would be best to pass it in.

    It should be brought up, again and again. 6 months from now, a year from now, this bill should come back. Democratic senators should vote for it, and then it should stay on the books.

  3. As a founder (along with Jefferson) of the first political party, Madison is partly to blame for members of Congress having their loyalties divided between the institution of Congress and their party.

  4. If someone really cared about reining in executive branch abuses, they would be talking and asking more questions about the Obama administration’s use of the “national security” surveillance apparatus to spy on the Trump campaign. This will go down as a major scandal in American history, but it has yet to be blown open because everyone is still tiptoeing around or actively defending the sacrosanct “scandal-free” Obama mythology.

    1. Russian trolls and their allies have improved considerably their command of English.

      1. This tendency to call anyone who dissents a “troll” is getting really boring. But I guess the left IS all about finding ways to foreclose arguments they don’t anticipate winning.

        1. Another thing you and I can find agreement on is the sad abuse of the once useful term troll.

          Except for that last sentence. I’m called a troll by some ’round here, ya know.

          1. Nah, I don’t think you’re a troll. Even on the frequent occasions when you’re wrong or suspiciously dense, I’m sure you’re sincere, and the essence of trollishness is insincerity.

            I think accusations of trolling are often due to a refusal to accept that people really can disagree on something.

            1. Rich, coming from you.

              1. When was the last time I called somebody besides Hihn a troll?

                1. I was referring to your contempt for the “refusal to accept that people really can disagree on something.”

                  You do a lot of that kind of refusing.

            2. Same page as you here, Brett.

      2. You forgot the stupid reference to him as “Boris” or “Sergei”

    2. That is Part B

      Part A was the whitewashing of the Clinton Server, and the Clinton Foundation, and the Imran Awan spy ring. It’s all the same scandal by the same people. The Russians didn’t need to hack anything after DWS handed over congressional cybersecurity to the Pakistanis and Clinton gave them an open back door to the Exec Branch.

      1. And your factual basis is…?

    3. The refrain of the Internet Man:
      ‘Soon, reality as I know it to be will be revealed to all, and then the history books will become as I have foretold!’

      Even if your conviction somehow privileged your version of events as correct, that’s not how history works.

      1. It’s already revealed, silly. It’s just not generally discussed or admitted in some of the main public spheres as of yet. And of course there are details to be filled in.

        If you disagree, then you’re the one claiming there is some new contradictory surprise yet to be revealed.

        1. It’s just not generally discussed or admitted in some of the main public spheres as of yet.

          Insisting that the vast populace who disagrees with you are all either liars or ignorant is still playing that refrain.
          Could also be said of UFOs or Bush doing 9-11. Or Trump maybe not actually hiring the best people.

          We had threads here about how FISA was used following normal procedure, how the memo revealed nothing out of the ordinary, etc. etc. Your confidence is not expertise.

          But given that unproven conspiracy theories swirl about FDR still, I wouldn’t hold your breath.

          1. He’s right about that: The stuff Clinton did IS already in the public domain, so it’s not like there’s a lot of “revealing” to do.

            It was a nice ‘reveal’, though, when Lisa Page’s closed door testimony from last year got released, and it was confirmed that the FBI actually thought Hillary should have been prosecuted, and got ordered by the AG to not go there.

            1. CNN has a different take:
              Page makes clear in her testimony that Justice Department officials “did not feel they could sustain a charge” against Clinton, but that “nobody had a closed mind.”

              “I am aware of senior FBI officials talking to subordinate FBI officials on the Hillary Clinton investigative team who unquestionably had anti-Hillary sentiment, but who also said: ‘You have to get her, or ? again I don’t have an exact quote ? but like we’re counting on you, you know,'” Page testified.

              Snopes: as Cato Institute senior fellow Julian Sanchez pointed out, the scandal Ratcliffe was attempting to generate is debunked by the simple fact that the conduct he and Page discussed was absolutely normal. The FBI doesn’t charge people — prosecutors at the Justice Department do — and it is entirely typical for DOJ prosecutors to explain to FBI investigators the precedents that govern what evidence they would need to bring a case.

              Strzok:
              And what I’m explaining what I meant by that is my use of that to compare a case, which is just looking at the activity compared to the allegation that the Government of Russia was actively working to subvert the Presidential election of the United States.

              None of your slam dunks are slam dunks. The score you keep running up is largely in your own head.

              1. Well, OF COURSE CNN has a different take. There’s a reason they’re commonly called the “Clinton News Network”. They don’t just wear their loyalties on their sleeves, they’ve got their loyalties tattooed across their foreheads. They’ve been in the tank for the Clintons so deep they suffer from nitrogen narcosis, from the start.

                “Snopes: as Cato Institute senior fellow Julian Sanchez pointed out, the scandal Ratcliffe was attempting to generate is debunked by the simple fact that the conduct he and Page discussed was absolutely normal. The FBI doesn’t charge people — prosecutors at the Justice Department do — and it is entirely typical for DOJ prosecutors to explain to FBI investigators the precedents that govern what evidence they would need to bring a case.”

                Seriously? You’ve actually forgotten that, after Lynch was caught secretly meeting with Bill, she publicly committed to following the recommendations of the FBI on whether to prosecute?

                While privately ordering them not to recommend prosecuting, we now know.

                1. Haha SNOPES. Is there supposed to be a point to this?

                  FBI wrote a report that Clinton was grossly negligent. AG orders them to stand down, we’re going to protect Ms. It’s Her Turn. But the argument here is, no, the AG was just explaining the law to the FBI, you see, on why she wasn’t grossly negligent. So then the FBI (Strzok) changes the report from “grossly negligent” to “extremely careless.” And Comey inexplicably references a lack of “intent” as the reason for no charges.

                  Never mind that intent isn’t an element of the statute.

                  Never mind that the gang of lawyers running this operation at the FBI were intensely aware of what the law was.

                  Never mind that nobody can explain any difference between “grossly negligent” and “extremely careless.”

                  Never mind that the FBI shouldn’t have even been making and presenting this prosecutorial decision in the first place. Comey had to violate that and step in to help out the gang, because the AG and everyone else was already so covered in shit and stinking to high heaven that Lynch couldn’t even make this decision and have it be viewed as legitimate!

                  Of course, then Comey gets rolled up in the shit, fired, and the gang manages to bring in their cleanup hitter Mueller.

                  What a surprise that Trump would fire the head of the FBI that spied on him. Right? It’s amazing he even offered him a chance to come clean by asking if he was “loyal.”

                  1. Haha SNOPES

                    Can’t help but notice you didn’t address anything in my quotes, just repeated your narrative. That you retreated to that comfort should tell you something about where your surety is coming from.

                    1. My entire post was addressing your quote directly. “the argument here is, no, the AG was just explaining the law to the FBI, you see, on why she wasn’t grossly negligent” I go on to address that point.

                      I’m surprised you’re this defeated that you just have to basically cover your ears and yell la la la. That’s essentially what your reply is.

          2. Sarcastro, You’re the one backing a conspiracy theory about Trump being a Russian asset, or something. So where’s the evidence? Where is the justification for spying on political opponents?

            I’m not dealing in anything other than facts as reported by CNN, NYT, etc.

            1. You think I’ve said Trump’s a Russian asset? Sorry, no.

              I think he’s overly nice to Russia because he’s easily manipulated. And it’s some hinky stuff his campaign shared polling data with their government.

              But asset is a whole ‘nother thing. Interesting you’d think that about me, though.

              As for your dealing in facts, no you ain’t. At least not about how the law operates.

              1. Oh ok, I thought you were of the mind that the proffered justification for spying on the Trump campaign was legitimate. (i.e. that there was evidence he was compromised by or working with Russia in some way)

                So I guess you agree with me that it was not justified and this is a scandal.

                1. You seem to have forgotten the evidentiary threshold for a FISA warrant.

                  And how FISA warrants on American persons work.

                  1. Oh ok, so you do think it was justified.

                    And what is the evidence, please?

                    1. M.L., the evidence is that if Trump is found to be lying about his business dealings with Russians, and if Trump is working with multiple staffers and associates who are lying about their dealings with Russians, then the whole lot of them are subject to policy-pressure and blackmail by Russians. And that stack of evidence was already pretty high by the time of the FISA warrant, and has only grown since.

                      Possibly you do not understand the central role of blackmail in the plans and estimations of national security establishments, foreign and domestic. It does seem incredible to me that you could doubt that Trump “was working with Russia in some way,” after Trump himself has publicly conceded that he was. The fact that he lied about it previously is also public, and available on tape you can look up, which shows him doing it.

                      Feel free to discount that evidence to zero, if that’s what your estimates of Trump’s probity demand. If you do, expect your personal credibility to track with Trump’s going forward. Maybe that will give you confidence. Others will be more cautious.

                    2. “if Trump is found to be lying about his business dealings with Russians”

                      Thank you. Can you point me to where he did this? I’m not saying he didn’t. But seeking a business deal isn’t the same as having a business deal.

                      “if Trump is working with multiple staffers and associates who are lying about their dealings with Russians”

                      Again, can you point to this? I assume you’re talking about campaign related stuff and not unregistered Podesta Group/Manafort lobbying from years ago.

                      “that stack of evidence was already pretty high by the time of the FISA warrant, and has only grown since.”

                      The FISA warrant was issued in late October 2016, after the same was previously denied by the court. The 2nd time around it was issued on the basis of the dossier and a Yahoo news report about the dossier (circular intelligence) and no other evidence, I understand. Is that your understanding too, or do you know of something else?

                      Also, what was the evidence for the investigation that began long before the warrant?

                      Finally, in your opinion do you think the American public should know more about the rampant NSA query abuses detailed by the FISA court in an Apr 2017 opinion lambasting the NSA? Queries against Americans increased over 300% in 2016 compared to 2013.

                    3. I think an investigation and concomitant warrant on Page was justified, yes.

    4. The Obama legacy is in for a hard time on a number of fronts. Personally i’d put the disposition matrix at the top of the list of unjustifiable power assertions.

  5. Thus demonstrating that the vote just past was indeed not about curbing excess executive branch power, but only a Trump specific or illegal immigration specific action.

    They hadn’t wanted to weaken Presidents, they were only voting to weaken this specific President, or more likely, to keep the border insecure.

    Curbing executive abuses was just a pretext.

    Now, this isn’t to say declaring an emergency to thwart Congressional will isn’t abusive, even if there objectively is an emergency. But it’s not really MORE of an abuse than many prior uses of the NEA, which didn’t prompt Congress to attempt an override.

    The earlier vote wasn’t about curbing Presidential abuses. It was just about keeping Trump from securing the border.

    1. So it’s a vote that should be taken, but you feel it’s special pleading against Trump and so are against it?

      1) None of the other EO’s were explicitly to go against Congressional intent, so yes this is more abusive.
      2) Isn’t this just tu-quoque?

      1. DACA went explicitly against Congressional intent. As did the requirement to apply Title IX to transgenders, or whatever that EO was.

        1. DACA wasn’t even an emergency declaration. Try again.

          1. So what? The principle is the same. Obama wanted citizenship for childhood arrivals, and Congress wouldn’t give it to him, so he said that Congress “wasn’t doing its job” and did it executively.

            1. He didn’t do nearly as much as he wanted from Congress executively.

              Trump’s working on more than he asked from Congress.

      2. Tu quoque is probably the most frequently mistaken fallacy callout on the internet, or at least was until it got replaced by “whataboutism”.

        “Tu quoque” is, “You’re guilty of this, so I must be innocent.” That’s what makes it a fallacy: Your also being guilty doesn’t have any bearing on whether I’m innocent.

        Tue quoque is usually (wrongly) called out when somebody tries to bring something into context: “Your shit stinks!” “So does yours!” “Tu quoque!” It would only be a tu quoque if I said, “Your shit stinks, therefore mine doesn’t.” Saying that everybody’s shit stinks isn’t a tu quoque.

        Anyway, no tu quoque here.

        The point is that this isn’t about the excessive growth of executive branch power, because the bill that got past 50% in both chamber didn’t do anything about the excessive growth of executive branch power, it just would have canceled a particular abuse.

        While the bill that would actually have reined in the abuse going forward is going nowhere.

        From this you can deduce that most of the people who voted for the bill to cancel Trump’s emergency declaration don’t care about the general problem. They just didn’t want the wall built.

        1. Sincerely, thanks for walking through that. It’s useful to be on the same page.

          Nevertheless, I still find your argument fallacious. As I understand it, your thesis is ‘others have done as bad and not been checked. Therefore Trump should not be checked.’ Past sins of others do not absolve current sins of Trump.

          As for the current bill, I think you’re falling for eyewash: If you think there is a current abuse going on, a reform that carves that out and purports to fix the rest is missing the trees for the forest. Potential future abuses are always going to be discounted versus current actual abuse.

          1. At the risk of putting words into Brett’s mouth, I think you’re reading that wrong, Sarcastr0.

            He said “While the bill that would actually have reined in the abuse going forward is going nowhere.” In other words, he favors ‘they should all be checked’. However, the bill for a comprehensive solution was voted down, meaning that either those who opposed it do not want anyone to be checked or at least that they do not want everyone to be checked. Since the same people who voted down the bill for the comprehensive solution also voted for a check unique to Trump, that certainly appears to support Brett’s argument that the people who voted to cancel Trump’s emergency declaration care only about that one particular emergency declaration and and do not care about the much bigger problem of congressional abdication.

            1. And doing something about the one particular emergency declaration bleeds off any urgency that might otherwise lead to solving the much bigger problem.

              My stance is that I want Trump to have every last illegitimate power any President would exercise in his place, and I want Congress to choke on it until they’re ready to fix the real problem, excessive delegation of legislative authority to the executive branch.

              Trump represents the first real opportunity to fix this problem in decades, I don’t want to see it wasted.

            2. Ignoring a bad thing because the people who want to stop it don’t want to stop it for the right reasons doesn’t seem logical to me either.

              I see no bad faith in wanting to solve the current crisis and therefore not settling for something the will solve only future potential crises.
              You do that, you give up your bargaining position to solve the current crisis. That’s not evidence of bad faith, at least not on the Dem side.

              1. When the “wrong reasons” are perpetrating a wrong, it surely is logical.

                1. Brett’s current argument seems agnostic to the underlying policy; it’s solely about the motives and alleged double-standards of those trying to check it.

                  The merits argument is downstream. Though unless you think the ends justify the means, the merits alone would be insufficient.

              2. They don’t want to stop “it”, they just want to stop the wall. that’s my conclusion.

      3. “None of the other EO’s were explicitly to go against Congressional intent”

        Intent is shown by positive actions of both houses, not just failed legislation.

        A Senate majority would support Trump’s fence plan. Why is this not evidence of “intent”?

        1. Intent is shown by positive actions of both houses, not just failed legislation.

          Are you just making up formalist rules as you go along based on convenience? How is Congress considering something and then voting for an alternative insufficient evidence?

          Trump only declared an emergency when Congress refused to pass what he wanted. If that’s not Congress checking the President as set up by the Constitution, I don’t know what is.

          1. He actually only declared the emergency once there was a different partisan majority to ‘blame’.

            That the majority of the now minority party neglected to give him what he wanted whilst in the majority shows quite clearly the absence of their spines.

            Had he declared the emergency in the prior session of Congress there wouldn’t have been a bill entertained to shut it down. This is nothing but political kabuki theatrics.

            1. Actually, if you look at the border crossing statistics, and don’t deliberately stick to old numbers, you’d see that the crossing rate plunged shortly after Trump took office, then started creeping back up, and in the last couple of months have hit levels not seen in more than a decade.

              So, it genuinely wasn’t all that bad during most of the time he had a Republican Congress.

              And I’m going to bet March’s numbers are going to make February’s look like a walk in the park.

              1. It is amusing that you think Trump might actually pay attention to such reports from his administrative underlings.

                You could also easily argue that the uptick charted there was from increased enforcement. Over the 5 preceding years there is no discernible trend.

                1. I’d say it’s amazing you think a billionaire who succeeded in being elected President on his first attempt at running for public office is an idiot.

                  Except that’ it’s not amazing, there are a lot of people who are more than a bit deranged when it comes to Trump.

                  1. He had the good fortune of having Hillary as his opponent. Don’t discount that in evaluating why he won.

                    More to the point, Trump has quite obviously displayed little appetite for taking advice from his administration officials. On pulling us out of foreign quagmires, I salute him for that.

  6. Problem is, it’s a Trump-emergency authorization bill. The proposal is to fix the problem later, after Trump gets what he wants, not to fix the problem now. Kind of foolish to expect the Ds to go along?and foolisher still to criticize them for not supporting what they would happily support if it were a principled bill instead of a Trump whitewash.

    No one can know what Madison would have had to say. But he wasn’t naive about politics, and absolutely did expect and foresee the kind of shenanigans the Rs are pulling on the border wall emergency. McConnell’s antics on Supreme Court appointments? Not so much.

    1. Writing a bill to apply only going forward is a pretty standard way to make it about the general principle, and not the immediate politics.

      The reason this bill is going nowhere is because the objections to Trump’s emergency declaration are basically ALL about the immediate politics, with very little interest at all in the general principle.

      1. Writing bills with retroactive provisions is also fairly common.

        1. Sure, they’re both common ways to approach this, and canceling all the existing National Emergencies would be a reasonable thing to do, too.

          I just think it’s too obvious that the complaints about THIS national emergency are not about principle or abuses in general. They’re just about keeping the wall from getting built.

          1. Well, if you can find something principled in Trump’s own admission that his “emergency” is just a convenient way to get around the objections of congress, I’d love to hear it.

            1. I don’t think there’s anything principled on either side of this particular fight.

              My position is that the only time there’s any chance to correct the underlying problem of excessive delegation of legislative power to the executive is when the legislature doesn’t LIKE the executive. So just stopping one of Trump’s abuses does nothing but release the pressure to correct the real problem.

              I want the real problem fixed, so I’m opposed to any legislation that just aims at stopping Trump. He gets every illegitimate power any President would be permitted to abuse, and if you don’t like it, reduce the number of illegitimate powers Presidents get.

              1. Then you should have zero issue with a bill that includes a retroactive provision that prevents the current administration from taking advantage of a poorly constructed law.

                1. As long as it undoes all existing Obama and Clinton emergencies too.

                2. The only real issue with your proposal for a bill including a retroactive provision is the practical one that it will almost certainly be vetoed.

                  A bill without the retroactive provision is less good but actually has a chance of being passed.

                  1. And a bill that applies to Trump and only Trump is 100% likely to be vetoed by Trump, making it the worst of all worlds.

                  2. Actually, it’s being reported that Trump has already rejected Lee’s bill. Because of course he has. So no, it wouldn’t.

                3. Yup, I’d be all for that. Zero out all current emergency declarations.

                  1. Is “zeroing out future emergency declarations” a part of Lee’s bill? Or does Lee’s bill simply seek to tighten up the rules regarding emergency declarations?

                    1. His bill would have made all future emergency declarations expire after 30 days unless renewed by Congress, (Unless Congress was physically incapable of holding the vote.) and then require a new vote to confirm them on an annual basis.

                    2. So even under a retroactive provision, no such declaration, including Trump’s phony emergency, would get zeroed out unless it couldn’t get the votes in Congress (which Trump’s phony emergency cannot seem to). You may stop shredding your garments now.

                    3. Right, “emergencies” automatically terminate unless renewed by Congress, instead of automatically continuing unless terminated by Congress.

                      That’s a pretty darned big difference, because it reverses the default, and deprives the President of the power to preserve an “emergency” by vetoing something.

          2. I just think it’s too obvious that the complaints about THIS national emergency are not about principle or abuses in general. They’re just about keeping the wall from getting built.

            Of course you do. Weren’t you just criticizing “a refusal to accept that people really can disagree on something?”

            Or is it only liberals who have that failing, in your opinion?

            1. I laid out my reasoning. It’s not about the general principle, because a bill reflecting the general principle went nowhere.

              1. To repeat myself:
                I see no bad faith in wanting to solve the current crisis and therefore not settling for something the will solve only future potential crises.
                You do that, you give up your bargaining position to solve the current crisis. That’s not evidence of bad faith, at least not on the Dem side.

                1. I’m not saying bad faith, I’m saying that, on the evidence, “the present crisis” isn’t usurpation of power by Presidents with Congressional assistance.

                  “The present crisis” is the threat that the wall might end up getting built.

                2. “You do that, you give up your bargaining position to solve the current crisis.”

                  ??

                  You don’t have a bargaining position. The Dems don’t have any different interest in future crises than the Rebubs.

                  1. Or they have a greater interest, given that Trump is president and can still declare emergencies.

                  2. It takes political pressure off the President to solve the general Constitutional issue.

    2. You’re making a critical mistake, in overlooking the fact that Trump could declare future emergencies to get what he wants. Ones far more dramatic than simply redirecting a few billion dollars towards a wall. This bill would also stop that.

      For example, he could essentially suspend the entire Clean Air Act.

      This bill would stop that. It should be a major priority for Democrats

      1. Except that they’re more interested in preserving the power of future Democratic Presidents than they are in reining in Trump. After all, Trump is a temporary aberration, while the future will eventually be permanent Democratic rule.

        They really think like that: At some point the Democrats are going to take control and never, EVER have to relinquish it.

        1. They are going to take control permanently.

          1. What do you think Bernie means by “a political revolution” that will “fundamentally transform” America? The Constitution has been weakening for a long, long time and the socialists are betting that it’s finally weak enough that they can take it down for good. America is an idea, a belief that the individual is sovereign and government his servant, and yet nearly every single Democratic candidate in one way or another espouses the idea that the individual exists to serve the needs of the collective. If you have a “right” to free healthcare and free college and a living wage and all the rest, well obviously somebody else has a concomitant obligation to provide these things. And I’m with Jefferson on this one: “… the mass of mankind has not been born, with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god.”

            1. Yes, exactly.

            2. Blah blah Democrats are all fascists and hate America. Every single one. Because Jefferson would have hated social security.

              Feel good to get it all out?

              1. Every argument sounds stupid if you replace most of it with “Blah blah”. and then follow up with something that wasn’t said.

                Bernie is a “red diaper baby”, raised by literal Stalinists. Volunteered in an Israeli Kibbutz that was run by Stalinists. He honeymooned in the USSR when they were still a totalitarian communist state. (And don’t give me that “sister city” crap, whose idea do you think it was in the first place to adopt a city in the USSR as a “sister city”?) He’s praised multiple left-wing dictators as role models.

                The guy is a geriatric Stalin wannabe. And he’s got a decent shot at the Democratic Presidential nomination!

                You really want to say that doesn’t say anything about today’s Democratic party? It says frightening things about the Democratic party. The only parallel I could come up with is David Duke being a serious contender for the Republican nomination, only David is endorsing Democrats these days. Returned to his roots, I guess.

    3. “The proposal is to fix the problem later, after Trump gets what he wants, not to fix the problem now.”

      Trump already has what he wants. The Congress has a choice between fixing the problem going forward, and never fixing the problem. For some reason, the Dems are choosing to never fix the problem.

      1. You’re so right. There is simply no possible way to craft a bill the democrats support. Lee’s bill is the only bill that could ever be written to address the problem. Like with all things, the democrats should be reasonable and give the gop exactly what it wants in exchange for nothing. You nailed it. Those dastardly Dems.

        1. “There is simply no possible way to craft a bill the democrats support.”

          There is no possible way to craft a bill that addresses Trump’s declaration that won’t get vetoed, sure.

          “Like with all things, the democrats should be reasonable and give the gop exactly what it wants in exchange for nothing.”

          Does the GOP want to end future emergencies more than the Dems do? If not, why should they give anything up?

      2. Twelveinch, what we are going to find out in court, I think, is whether the Justices think greater deference should go to the executive’s ability to exercise congressionally delegated power despite a more-recently-expressed congressional intent that that specific exercise should not occur, or whether the Justices think greater deference should go to the constitutional principle that congress controls the purse strings. As a conservative, do you really think deciding the case against congressional control of the purse strings would be the right decision?

        1. The problem here is that “expressed congressional intent” doesn’t mean squat unless expressed in the form of a bill that ends up enacted into law via the presentment clause. I fact, there’s a perfectly on point ruling to this effect that’s specifically about the National Emergency Act.

          Should the Court rule against Congress delegating spending authority in the way the NEA does? Yeah, of course it should. It should do a lot of things it has a vanishingly small chance of doing, because there’s a mountain of bad precedents of this sort the Court is almost certainly never going to revisit.

    4. Madison was not naive?

      Woo boy!

      This is a man who thought the idiotic systems he waa creating would prevent factionalism. They entrenched it!

      1. Dilan Esper, Madison criticized faction, while saying it was an unavoidable feature, founded among differences between human faculties, and of variety among human circumstances, and that you would always have factionalism. You can look it up. That’s what he wrote.

        It’s in Federalist 10. I would quote it to you, but as usual with Madison, he spreads his point across multiple paragraphs, many long sentences, and uses too many words to allow quotation in a forum like this one. So correct yourself, or not, just as you please.

        Here’s sort of the summarizing conclusion, in one sentence: The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.

        See? The opposite of what you said.

  7. “In the House, Speaker Nancy Pelosi declared that there would be no vote on any such legislation.”

    That is not what she said. She said there’ll be no vote on Lee’s bill, which reforms the law but allows Trump to operate under the existing law. The existing law that, as you say, needs reform.

  8. Once again I will remind everyone that the 1970s emergency power legislation was designed to limit the president by trying to eliminate any claim to “inherent” presidential powers.

    Its been used without significant problems for 50 years by presidents of both parties [fatally flawed because the “Congressional disapproval” violates the presentment clause] to mainly impose sanctions on bad people.

    Now, Orange Man Bad and everyone freaks out. I suggest everyone, including Mike Lee, just relax.

    1. It’s not imposing sanctions on bad people here; maybe that’s why people are not relaxing in this case as compared to the others.

      1. Its re-directing a minor amount of spending. Its not a marital law declaration.

        A president using statutory powers is a way you don’t like is hardly a freak out situation

        1. So your parallel above fails, so now you turn to arbitrary line drawing.

          I find this particularly troubling because it’s using powers to end-run around another branch’s refusal to act.
          For better or worse, our republic is built for gridlock. Trump attempting to obviate one of these intentionally created ‘gates’ is more than just a policy question, it gets at our system itself.

          1. “So your parallel above fails” … “arbitrary line drawing.”

            What are you talking about? My position is that no emergency declaration to date, including Trump’s, is worrisome.

            Congress has passed a statute allowing X, the president doing X is hardly a threat to our system.

            Look at the emergency statute, it requires a parallel statutory grant. Usually in practice that has been a sanction law but its not limited to that. The question is if Trump has the parallel grant here?

            1. You: “Its been used without significant problems for 50 years by presidents of both parties”
              Me: “This case different in kind”
              You: “This case is de minimis!”
              Me: that’s arbitrary. Also, de minimis doesn’t matter as I’m worried about the implications more than the result.

              Hide behind formalism all you want, but this is not the intent of the declaration due to
              1) no emergency (as Trump has admitted)
              2) Congressional rejection
              3) not like Congressional acquiesced past uses.

          2. “I find this particularly troubling because it’s using powers to end-run around another branch’s refusal to act.”

            Wasn’t the DREAM declaration used as an end-run around Congress’s refusal to pass similar immigration legislation?

            1. DACA was a much more modest initiative than Obama pushed before Congress because he had to stay within his executive powers, not declaring an emergency and taking unlimited discretion.

    2. Let me just say this: Solving Presidents making claims of “inherent” power by giving them the power via statute is like solving the problem of a bank robbery by making the money a gift.

      It totally fails. It makes no sense at all.

      All they were doing was enacting a fig leaf that would restrain Presidents not at all, while making some noises about their authority that they weren’t willing to back up with a fight.

      1. They enacted a congressional veto procedure by simple majority of both houses.

        Unfortunately, that aspect violates the Constitution’s presentment clause per the Supremes.

        Further, the Dems had controlled both Houses for all but 4 years since 1930 so they imagined they could always stop a GOP declaration.

        1. And the emergency declaration may only be issued if it is tied into another statutory grant.

          The legal issue with Trump is if the Secure Fence Act [or another statute] permits the trigger here.

        2. And when the Supreme court ruled that procedure unconstitutional, instead of repealing the NEA, or making the emergencies expire in the absence of a vote to continue them, they put the current procedure into law.

          Because they wanted to keep the status quo of Presidents having the power to declare emergencies and Congress having an excuse why they couldn’t stop it.

  9. How was the President’s declaration “obviously made in bad faith”? How did it “clearly abuse[] the [President’s] discretion”?

    The statute in question does not give any limits on the President’s power to declare a national emergency. Declaring a national emergency on the border is no more in bad faith or an abuse of discretion than declaring a national emergency to deal with Somali pirates.

    Were you similarly concerned with President Obama’s declaration of a national emergency on cyber warfare attacks? Keep in mind, that declaration was two years in the making, plenty of time for Congress to act on the subject.

    It seems to me like you disagree with how the current President is exercising his power, not the fact that he has the power in the first place.

    1. Are you unable to distinguish between the increase in overseas cyber attacks and the border continuing to be more or less just it’s been for a decade or so now?

      One’s an emergency, the other is not. Hiding behind bare formalism won’t save you from charges the president is abusing his discretion beyond the intended purpose of the law.

      1. Arrests at the border reached a decade high last month.

        So your premise of stability may not be valid.

        If the arrests continue to spike, will you change your mind about an “emergency”?

        1. Your arbitrary threshold doesn’t mean much. Changes in degree are not changes in kind.

          I find it hard to believe that even you think the border suddenly crossed the crisis threshold right when the Dems took over the House.

          1. As I expected, you won’t change your mind ever on border controls..

            I mean, that’s fine, its basically my view in reverse, but you pretend to be different than me.

            BTW, the border has been in a crisis for decades.

          2. You said “more or less as it’s been”, and this is objectively wrong: The problem is now about 6-7 times worse than shortly after Trump took office, and climbing.

            Can’t you just admit you were wrong about it? Why did you even bother claiming the border situation didn’t change, if it doesn’t matter if it changed?

            1. Data dude! Your assertions are pretty worthless unless you back them up. After trying to peruse the DHS website to get an idea of your claim. I find that none of the alien apprehension tables in the Yearbooks since 2017 are available online. All the other ones–naturalization etc– are available. I wonder why that would be? Its hard for me not to assume bad faith.

            2. I knoe you hate Mother Jones, but Drum is good with data, and less stridently liberal than most. Link

              Have you thought maybe any recent increase is caused by Trump’s changing policies from Obama’s more effective past policies?

              1. Where do we get the “going back to Mexico” data?

                I can draw a chart too. Charts aren’t facts.

                1. Foreign born percentage of the US population is back at pre-WW1 levels.

                  Yet we have negative out-migration?

                2. Charts aren’t facts

                  FFS Bob, it’s from a Pew study, linked in the article.

      2. Conclusory statements are not a substitute for argument.

        The statute doesn’t say what defines an emergency. That means Congress leaves it to the President to decide what is an emergency.

        Congress can disapprove of the President’s determination by the ordinary Constitutional order – passing a law through both houses and having it signed by the president (or overriding his veto). The fact that Congress passed a bill objecting to the exercise suggests that they have consented to the President’s claimed scope of authority.

        If Congress lacks the political will to override or check a President’s exercise of authority granted to him by another law then that is a feature, not a bug.

        I give in when my three-year-old throws a temper tantrum, I don’t see much difference here.

        1. Hidebound formalism is not a substitute for an argument either. Do you think court packing would be okay? Formally, it’s fine!

          1. Court packing would be within the scope of the power granted to the President and the Senate. If the President and Senate were to pack the court (as many Democrats have suggested as a ‘remedy’ for the established political order that allows Republicans to sometimes win elections), then I would argue against it as a poor decision, both politically and as a matter of sound government.

            I would not argue in bad faith that the President lacks constitutional authority.

            In short, it isn’t unconstitutional to disagree with you (or Mr. Whittington) on political matters.

            1. So you admit legal is not the same as proper. Except your argument above is that formal legality is all your require.

              The fact that your thesis allows the President to declare a permanent state of emergency beholden only to a veto-proof majority doesn’t seem to bother you.

        2. or overriding his veto

          Formalism over any kind of real-life function.

          Shameful rationalization, really.

    2. The part where, in front of reporters and cameras, he said that he didn’t need to declare an emergency but wanted to because it would be quicker? That’s the “bad faith” part. If you prefer, we can just call it “pretext”.

  10. and the border continuing to be more or less just it’s been for a decade or so now?

    “Border cops encountered more than 76,000 people they say tried to illegally cross from Mexico into the U.S. in February, making it the highest level of illegal immigration the U.S. has seen in one month since 2007.

    The number shot up from 58,000 who were arrested and turned away at ports in January. The monthly rate has slowly crept up from 17,000 during President Trump’s third month in office in 2017.

    Senior Homeland Security officials said Tuesday they expect the number of migrants illegally entering the U.S. from Mexico to continue spiking due to a continued surge of family and children arriving daily. ”

    The thing is, you can’t prove there isn’t an emergency today by pointing to there not being one two years ago. The people claiming that illegal immigration is just what it’s been for a decade or more are deliberately using stale statistics.

    1. Brett, I’ve been hearing that the increase is owing to more would-be refugees, seeking asylum. If they are in fact entitled to asylum, then calling their border crossings “illegal immigration” is simply a mistake. So by whatever number these folks do include people entitled to asylum, you have to adjust the purported “illegal immigrant” number downward, right Brett?

      And I don’t think you, or anyone, now knows what the correct figure would be after all the asylum applicants are adjudicated?let alone what it would be if they were justly adjudicated. (I admit to being a touch cynical about the quality of judicial temperament to expect from an expanded panel of immigration judges who are all Trump appointees.)

      1. “they are in fact entitled to asylum”

        They are not.

        They are gaming the system. Asylum is a giant loophole consuming the whole system because it lets them enter and then maybe we can deport them later.

        Entry is 99% of the battle.

        1. “They are gaming the system”

          Wait, doesn’t this just mean they’re “smart business-people”? Maybe these immigrants are preparing to run for President on the 2020 GOP ticket.

          1. No. It doesn’t mean that.

        2. Then it sounds like the crisis is the existence of our asylum system, not some wall.

      2. Just because illegal immigrants are now trained to say, “I’m applying for asylum!” doesn’t mean that if you capture somebody illegally crossing the border they’re not an illegal immigrant. It just means they’re a well coached illegal immigrant.

  11. Congress could if it chose to override the veto and stop it. The fact that Congress did not do that is pretty clear proof that Congress approves of this. Congress has plenty of methods to stop a President from doing something it doens’t like. Its refusal to use those means is an endorsement of the action.

    Madison would not weep over this at all. Madison would see it as exactly how the system is supposed to work in solving what is a political question.

    1. John, that’s taking faith in minority rule to a new level of delusion.

  12. Would everyone please stop criticizing Trump! I’m getting tired of reading all the comments in reply about Obama and Bill Clinton.

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