In yesterday's post, I explained that I saw the emergency declaration as the inevitable outcome of Trump's showdown with Congress essentially because I already thought everything had broken down. Those who failed to see the emergency declaration coming failed to see it because they falsely believed that we were operating in anything like a normal political system. So... what now?
The first obvious "what now?" is the court challenge. This will, through some means, wind its way to the Supreme Court. It is time, then, for your reminders. First, the "attitudinal model." Judges and "Justices" (the special term for judges on the Supreme Court) are nothing more than ideologically motivated politicians in particularly stupid costumes. Next, "Miles's law." Where you stand depends upon where you sit. In other words, nobody has any real process preferences. They just take whatever position benefits them based on their circumstances at the time. Concepts like executive power, for most normal people (I'm not normal!), are subject to Miles's law. When someone they like, doing something they like, is in the White House, they want the president to be an all-powerful dictator. When the president is of the opposing party, reaching for a Kleenex after sneezing is the epitome of executive over-reach. And, since I'm basically an attitudinalist when it comes to the Supreme Court, I think their interpretation of executive power is subject to Miles's law. Ideological hacks, the lot of them.
In US v. Texas (2016) the Court vaguely, kinda ruled on Obama's executive actions on immigration. The Court was divided 4-4 because Scalia had croaked and McConnell had pulled the Supreme Douchebag Maneuver, blocking Garland from filling the vacancy left by Scalia's dead, rotten, fetid corpse, which Federalist Society members still have to dry-hump as part of their admission-hazing ritual. Anyway, Roberts, Alito and Thomas were on the Court then, and are on the Court now. They all looked at Obama's executive actions on immigration and said, NOOOOO!!! TOOOO MUCH EXECUTIVE OVER-REACH!!!!
Okay. They didn't say that much. It was actually one line, upholding a lower court ruling because they were divided 4-4, but those three remaining conservatives looked at what Obama did on immigration, which was mostly applying existing law in an expansive way, and said no. Obama couldn't get Congress to pass a law exactly the way he wanted, so he went too far in using existing legal authority to change policy, and the Court said no.
That's US v. Texas.
Now, Trump wants to shred Article I because Congress wouldn't appropriate the money he wanted. Obviously, Alito, Thomas and Roberts will have none of it, right? We know that Justices don't look at policy or ideology or anything like that. They "interpret the Constitution!!!!" Particularly those "strict constructionists," right? That's what they're always telling us, right?
And we're all stupid enough to take them at face value, right? I mean, how insane would it be if Alito and Thomas said that the president using prosecutorial discretion on immigration and applying existing authority to tell the immigration process whom to prioritize and all that... that such actions would go too far if the president just did it on a bigger scale than Alito and Thomas thought Congress intended, but declaring an emergency while admitting on national tv that it's not an emergency in order to usurp Congress's Article I powers to appropriate money just because they didn't appropriate the money he wanted, and admitting that that's the reason... that that's OK?
No. That'd never happen. I mean, they'd never be able to wake up and look themselves in the mirror and say, with a straight face, "I'm a strict constructionist who interprets the Constitution."
Right?
Have I made my point about "strict constructionism," the attitudinal model, and Miles's law? We know, with absolute, 100% certainty, that Alito and Thomas will back Trump. Same with Gorsuch and Kavanaugh, who just weren't on the Court for US v. Texas. Hypocrisy is supposed to be the tribute vice pays to virtue, but how can that be when these assholes are too cheap and lazy to bother paying the tribute, and yet still blaze new trails every day through the uncharted territorial boundaries of hypocritical frontiers?
And Roberts sided against Obama in US v. Texas. Roberts is the wild card. He sided with Obama on NFIB v. Sebelius. He does weird things sometimes. He is hard to predict.
What will happen when Trump's emergency declaration stunt goes to the Supreme Court? It depends entirely on John Roberts.
Article I of the Constitution now relies on John Roberts.
In yesterday's post, I drew an analogy between the state of the Constitution and the checks-and-balances and separation of powers therein, and either the parrot from Monty Python, or the "Man In Black," from The Princess Bride. How dead is dead? Is John Roberts "Miracle Max?"
And that leads me to the question of how bad this is. How bad is it? Bad enough that the future of the doctrines of checks and balances, and separation of powers depend on whether or not one unreliable guy turns out to be Miracle Max. That's not a comfortable position.
So let's have some reminders. The framers did not like the idea of a strong executive. They didn't like the idea of concentration of power or unchecked power. The idea of an executive who can declare a fraudulent national emergency whenever Congress doesn't do what he wants, and use that to override the separation of powers written into Articles I and II really should terrify you.
A few miles of "wall," or steel slats, or whatever that idiot wants to try to build... that's nothing. Once you establish the inability of other branches to check the president, though, what's off the table?
This has been my warning for a while now. It is the same warning I give about the problem of Trump's pathological lying. Once you destroy the concept of truth, what's off the table? What can't the government do? If you have a populace who can't tell truth from lies and an executive unchecked by either the legislature or the courts, there is no atrocity that can't happen. The problem isn't the wall. The problem is that once the process of overriding all checks to get to the wall is allowed to happen, that same process permits anything and everything.
This isn't a slippery slope. This is jumping off a cliff.
Right now, Democrats are sitting around thinking about what they'll do with this kind of power, including some ideas that are as stupid as the wall. A few warnings.
A) Don't assume you'll ever get this power. Give this kind of power to someone, and you can't trust that they'll ever give it up.
B) Emergency declarations could be used to retain power, either directly or indirectly. If Roberts lets this stand, it really is time to start worrying about Trump using emergency declarations to keep himself in power, shut down any ongoing investigations or legal processes, etc. Those were worries before anyway! Would you really put it past him to use an emergency declaration to call off an election if he thought he'd lose? A month ago, the idea of a phony emergency declaration to usurp Article I powers would have been too crazy to consider. Remember in 2016 when people asked Trump if he'd accept an election result in which he lost? Remember how he kept refusing to say yes?
C) Even if Democrats get the White House and start trying this stuff, Lord Acton is still right.
So, how bad is this? Bad. The wall is nothing. It's stupid, a waste of chump change from the perspective of the federal budget, and demonstrates the idiocy of everything that has happened in our political system since some people decided that a reality tv star who knows nothing and lies about everything should be the center of the political universe.
If, however, a president can declare a national emergency on phony terms, while admitting that there's no emergency, just to usurp Article I powers, that's it. That's all she wrote. There's nothing that's off the table. No more checks of any kind. No balances. Anything left is what remains because of the personal restraint of whoever sits in the White House.
I'll type that again. Anything left after we eliminate checks and balances is what exists because of the personal restraint of the individual who sits in the White House.
The whole point of the constitutional order is to make that not be the case.
Shiva. Destroyer of Constitutional Governance. He is become death. Destroyer of democracy.
John Roberts: Vishnu? There's no Oppenheimer reference there. Oh, well. (Then again, someone can probably tell me that I'm mangling Hindu mythology.)
