We at The Bulwark, perhaps you’ve noticed, haven’t been too keen on President Trump’s effort to build his wall on the southern border via national emergency declaration. Not only is Trump engaging in a totally gratuitous executive power grab, a real kick in the teeth to conservative pieties about limited government and the separation of powers, he couldn’t resist browbeating almost every GOP lawmaker into going along for the ride. As a result, an entire generation of congressional Republicans have now relinquished all credibility when it comes to opposing future flexings of the executive will to imperial power, a sacrifice they will surely have cause to regret in the years ahead.
One must resist the temptation, however, of viewing this boondoggle, purely as a Trump problem. The most depressing aspect of the whole affair, in fact, isn’t what has been unprecedented about it but what has been totally commonplace and quotidian: Congress’s ability to fritter away opportunities to pass crucial reforms because everyone involved judges it to be in their short-term political interest not to pass them.
When Trump first began openly floating the idea of breaking the national emergency glass in January, the knee-jerk critical response was: He can’t just do that, can he? The national emergency system exists so that the executive can take swift, decisive action in moments of time-critical crisis where congressional action is too sluggish and unwieldy to suffice; any fool could see that a systemic, decades-old problem like a porous border shouldn’t qualify. But given that the whole point of the mechanism is to empower the executive to act in circumstances unforeseen by legislators, it makes sense that the precise limits of the presidential ability to declare emergencies are, as a matter of law, relatively vague. The law instead empowers Congress to exercise a prudential check over the president: If they think he’s using emergency powers irresponsibly, they have the ability to cancel the declaration. This system works great on paper; this month, America discovered its greatest practical flaw: It doesn’t really function when one party in Congress is more afraid of crossing their president than of ensuring the fidelity of the system.
One response to this, a not unreasonable one, is simply to shake one’s fist angrily at the president. We had a good thing going until you came along and mucked it all up! But there’s another, wiser way to see Trump’s abuse of the system: If a president who doesn’t respect limits to his power was able so easily to twist the system to his will, well, what good was the thing to begin with?
That’s the spirit in which Senator Mike Lee proposed a bill reforming the national emergency system earlier this month. The bill, titled the ARTICLE ONE Act (please don’t ask about the acronym), would cause national emergencies declared by the president to automatically expire after 30 days unless Congress votes to approve them, and require Congress to reauthorize them again on an annual basis. It’s an elegant proposal that preserves the spirit of the system—giving the president broad short-term powers in times of crisis—while eliminating the possibility of the sort of abuse Trump has made clear is all too possible under the current framework. It doesn’t instantly cancel Trump’s current national emergency—the president, of course, would never sign on to that—but it gives Congress a chance to sunset it a year from now. It’s a slam-dunk. It’s going nowhere.
You’d hope this wouldn’t be so. To hear them talk, Republicans and Democrats alike in Congress agree that the current national emergency system is ripe for abuse; even many Republicans who voted to allow Trump to declare the border emergency on the grounds that it was not prohibited by current law suggested they thought the law should be changed. The statement from Ted Cruz, who co-sponsored Lee’s bill, was illustrative: “I understand my colleagues’ real concerns regarding the vast emergency powers that Congress has given the President over the last half-century. I share those concerns… The National Emergencies Act gives the President the authority to activate more than a hundred distinct emergency powers, including those he is exercising here. That statute is, I believe, over-broad. It invites abuse.”
Even President Trump has signaled that he would be open to amending the rules governing the national emergency system—provided, of course, that he can still build his wall. So why isn’t Congress passing the thing? What gives?
On the Democratic side of things, the answer is obvious: By and large,what angers congressional Democrats isn’t the idea of untrammeled executive power. It’s rather the idea that a bad man like Trump should be able to wield it. Any legislation clipping presidents’ emergency power wings that doesn’t immediately foil Trump’s border plans does nothing for them. In some of their eyes, in fact, such legislation would be a net negative: If Trump’s going to get away with this border travesty, well, why on earth shouldn’t they get to ram a few of their policy priorities through too, when they take back power?
This suffices to explain why House Speaker Nancy Pelosi has come out against Lee’s bill, ostensibly on the grounds that it gives Trump permission “to violate the Constitution just this once.” Lee’s bill, of course, does no such thing—it’s an update to the function of the system, and would treat Trump’s latest emergency declaration the same as all current ones. Pelosi’s refusal to support the bill, or any bill accomplishing the same thing, is a tacit endorsement of a system that remains vulnerable to the kind of abuse she claims to abhor.
It’s a transparently political move on Pelosi’s part—and that’s good enough for congressional Republicans. The national emergency vote was a sore spot for many of them, and they’d be perfectly content to sweep the whole thing into the past. Pelosi’s disapproval of the Lee bill provides the perfect excuse. We’d love to amend the system, they can say—it’s only the Democrats who stand in the way!
There’s a certain temptation that critics of President Trump must strive to avoid. The man is vacuous, short-sighted, self-centered; practically everything he touches he makes worse. But much of the man’s behavior is so shameless and shallow that it can encourage lazy criticism. It is easy to see and remark upon the damage Trump does; more difficult, often, to see beyond that damage to the more quotidian dysfunction that preceded him and will remain long after his departure. President Trump got us into our current national emergency mess. But the fact that we can’t find our way back out of it—that’s classic Washington.