Before we begin, I need to clarify two things: First, this editorial is neither criticism nor endorsement of the proposed border wall. Second, this is not a “Trump-bashing” piece. My criticisms are of policy, not people.
When our Founding Fathers set out to form a new nation, they had recently won independence from a tyrannical monarch. During the bloody and costly Revolutionary War, many paid excruciating prices for freedom. Five signers of the Declaration of Independence were captured as traitors, 12 lost their homes and two lost children to the war.
While some folks had become comfortable with having a monarch in charge, the majority of the framers realized future tyranny could only be thwarted, or at least slowed, through separation of governmental powers and a series of checks and balances.
They crafted the Constitution to limit the government and enumerate its powers rather than direct the lives of the people. When it came to lawmaking authority, the framers divided the powers: Congress makes laws, the president and his administration enforce laws and the courts interpret the constitutionality of laws. This system has worked, more or less, as designed for the past 231 years.
However, in 1976, Congress passed legislation called the National Emergencies Act. The act clarified certain emergency powers of the president, while delegating other such powers to him for the sake of expediency — one person can act more swiftly and decisively in times of crisis than a 535-member body.
The original act provided for Congressional rescission of emergency declarations with a simple majority vote of each chamber. If Congress was unsatisfied with how their delegated powers were used, they could simply reel them back in. But things changed in 1985 when a bill was passed giving the President veto power over such rescissions. It was in this moment our separation of powers failed. However, 33 years passed and the cataclysmic severity of that failure lay dormant.
That is, until President Trump made the unprecedented move to use an emergency declaration in direct contradiction to the will of Congress, bringing the issue to the forefront and drawing the ire of both Democrats and Constitutionalists like Rand Paul, Justin Amash, Thomas Massie and our own Dusty Johnson. You might ask, “What’s the big deal?” Well, let me paint a grim but realistic picture.
With this power, and the support of just 34 Senators, the president can unilaterally make any policy he or she wants simply by declaring it to be an emergency. Congress can move to rescind the emergency declaration, but as long as those 34 Senators vote to sustain the president’s veto of the rescission, the policy stands.
Effectively, this means a small group of 35 officials have the power to implement any policy they desire, bypassing the constitutionally-specified channels. This time it’s a border wall. Next time it may be massive climate-change policies, or perhaps, as Speaker Pelosi suggested, sweeping gun-control measures.
The Founders never intended for so few to have such concentrated power. Historically-speaking, this sort of unchecked power has inevitably led to despotism and tyranny. So who could stop such a “runaway” scenario?
Congress? Nope, it takes a supermajority of the Senate — 2/3 majority, or 67 votes — to remove the president from office, even if impeached by the House. As long as those 34 Senators march in lockstep with the president, he or she can’t be touched.
The last line of protection might be the Supreme Court. But again, their job is to determine the constitutionality of laws, not the merits thereof. Also, with only nine justices — all of whom were appointed by a president at some point — they remain an unpredictable variable. (Remember when SCOTUS ruled the government could force us to buy health insurance?)
Believe me, it’s not an enviable position to be part of a small minority who see the mousetrap we’ve stepped into and are desperately trying to warn others. Unfortunately, the cyclical nature of history suggests the majority won’t listen until it’s too late. They seldom do. Only decades later do students of history look back from the safety of a desk and ask, “How did so-and-so come to power? How could people let that happen?”
Mark my words: It won’t be long before we regret vesting too much emergency power in the Executive Branch.
—Gideon Oakes is a real estate agent and recent candidate for District 30 Senator