Friday, September 20, 2019

Appeasing Trump on Wall Funding Will Lead to More Hostage Taking

by Neil H. Buchanan

The news cycle has long since moved on from Donald Trump's false national emergency declaration in February, which he used to take funds that had been appropriated for other purposes and instead redirect them to build his pointless and wasteful wall.  That issue, however, might be about to come back into the spotlight.

There was a bit of interest over the summer in a terrible decision by Trump's Five Enablers on the Supreme Court (whom I will refer to as T5E, because it is too onerous to try to come up with different ways of saying "hyper-conservatives who were put in place through various forms of once-unthinkable political dirty tricks and who now are helping to complete the rightwing takeover of the country, democracy be damned"), who allowed Trump to redirect funds to build parts of the wall while a case is pending to determine whether the redirection of funds is permitted under the relevant statute in the first place.

As Professor Dorf explained in a column at the time, T5E came up with an absurd reading of what counts as "irreparable injury" in the context of injunctions: "Perhaps ... five justices of the Supreme Court think that the emergency justifying extraordinary relief from the Supreme Court is an urgent need to build Trump's wall."  That is, not building the wall is itself the injury that Trump will suffer while waiting to find out whether it is legal to build his wall at all.

As I explained in a followup to Professor Dorf's column, T5E could have simply declared that the issue was non-justiciable as a political question, saying that Congress's failure to override Trump's veto of Congress's cancellation of Trump's emergency declaration (stay with me here) was all that the Constitution requires and nothing more.  That would have eviscerated the entire concept of judicial review of every dispute between the political branches, because the failure by Congress to stop the President would be viewed as sufficient proof that the system is working, every time.  Instead, T5E mangled the law of injunctions, which I argued might be worse — or, strangely, perhaps somehow better — than the alternative.

Now, however, the picture is becoming a bit clearer in terms of how the immediate politics will play out on the wall-funding ploy, and it has nothing directly to do with the Supreme Court at all.  We are, in fact, about to enter a new version of old-fashioned Republican hostage-taking in the budgetary realm.  And if we thought that it was ugly before Trump came along, this will be worse.

Although most of my writing (in quasi-academic fora like Verdict and here on Dorf on Law, as well as in traditional academic journals) has been in the areas of tax policy and government budgeting, I ended up being pulled into the constitutional side of things during the endless battles over the federal debt ceiling from 2011 through 2019.

Working separately and also collaborating frequently with Professor Dorf, I gradually found myself more and more impressed with the wisdom of the Founders' commitment to the separation of powers, in particular in giving Congress the power of the purse as a way to discipline the executive branch.  Even with the president intimately involved in budget negotiations, appropriation of funds is ultimately a legislative act, whereas the spending of those funds (no more and no less, and only on what Congress has authorized them to be spent) is quintessentially an executive responsibility.

Richard Nixon's attempt to impound funds loomed large in that analysis.  Although the Supreme Court never had the opportunity to affirm the lower courts' decisions against Nixon's impoundments, that was only because the post-Watergate Congress passed legislation explicitly forbidding a president from refusing to spend appropriated funds as directed by law, making the case moot.  The Court did, however, later reaffirm its belief in the centrality of the separation of powers by holding that even Congress itself cannot cede its own constitutional powers by, for example, granting the president a line-item veto.

The overarching point is that a president acts lawlessly if he says to Congress: "You know what?  I don't like how you told me to spend money, so I'm going to do it my way instead."  Trump's legal advisors, however, concluded that Congress had given Trump the opening to do exactly that by allowing a president to respond to emergency situations.

As Professor Dorf explained in the column from which I quoted above, however, "the point of statutory provisions allowing the president to divert funds from one appropriated purpose to address unforeseen military requirements or emergencies requiring the use of the armed forces is to address unanticipated national security threats when there is insufficient time for Congress to authorize new appropriations."

In other words, we can realistically imagine a situation in which a president cannot in good conscience wait for Congress to act while a very immediate emergency harms the public, but that exception cannot be allowed to swallow the rule.

And guess what?  Trump and his people love that exception, having now turned it into a weapon that will only become more of a blunt tool in the future, almost assuredly with the blessing of T5E.

It is notable, however, that this will play out in a way that Trump and his people probably could not have scripted, even if they were smart enough to do so.  Instead, his blundering power grab is simply leading us from the first step inevitably to a terrible outcome.

Because the statute that Trump is abusing in the service of his diversion of funds has to do with military emergencies -- and I obviously agree with Professor Dorf that the genuine humanitarian crises that are playing out in the context of asylum and refugee law are absolutely not military emergencies -- Trump has been diverting funds that Congress had appropriated for other military purposes.

While that strategy at first seemed politically self-defeating for Trump -- attacking his party's own second highest priority (after tax cuts) by reducing military spending, with $63 million even being taken from Senate Majority Leader Mitch McConnell's home state (money that would have been used to build a middle school for military families) -- it instead puts in motion a hostage-taking dynamic very much in the style of the debt ceiling standoffs that we witnessed during the Obama years.

After all, the press (which Trump, of course, calls "the enemy of the American people") can be relied on to do its job here by dutifully reporting on all of the people who are being harmed by Trump's having stolen the funds that they were counting on -- and that Congress had agreed were important enough to fund, even in an anti-tax environment.  The message: "Trump's money grab has a human face, and these people are sympathetic.  How can he do such a thing?"

Good for Democrats?  Not really.  Republicans can now propose to spend new funds on the school in Kentucky and the other projects that Trump has looted, and the public can be expected to say, "Well, that's a relief.  Sanity finally prevails."  But of course, that merely gives Trump exactly what he wanted all along, with Congress approving extra military spending above the maximum that it had said it would spend, and the extra going to build the wall.  The timing is different, but the outcome is the same.

Where does this end?  With T5E happy to give Trump dictatorial powers (unless Chief Justice John Roberts decides to do something minor to protect a vestige of the separation of powers), the only way for Trump to be stopped -- not just on wall funding, but to prevent a full-on Nixonian imperial presidency -- is for Congress to say no to any supplemental funding request, no matter how it is timed.

Democrats (and some Republicans) might even be trying to do something very much along those lines, proposing to block Trump's request to fund his wall in the next fiscal year.  The problem is that they are in a hostage negotiation, and the other side has no conscience.  Just as Republicans during the debt-ceiling battles were willing to take the whole world's economy hostage to try to force Democrats to agree to more domestic spending cuts, Trump and most of those Republicans seem simply not to care that what they are doing harms real people.

In other words, we are again in a situation where there is humanity on one side and inhumanity on the other, and the inhumane side knows that the other side will be tempted -- by its own "weakness" of actually caring about people -- to give in.  Who cares, for example, that at Joint Base Andrews in Maryland, a new child-care center "has suffered from sewage backups, heating, ventilation and air conditioning failures and mold and pest management issues"?  Certainly not Trump.

When one side is truly willing to shoot hostages, things quickly get out of hand.  During the debt ceiling wars, there was at least the Wall Street wing of the Republican power structure that was horrified that the reactionary populists were holding the financial system hostage.  Here, there are plenty of Republicans who love to throw money at the Pentagon (though more commonly by wasting money on outdated weapons systems, but I digress), but virtually none of them will stand up to Trump.

With the T5E unlikely to stop him, and with the opposition to Trump's money grab likely to collapse in the face of genuine concerns about the people from whom Trump stole money, the path seems clear for Trump.  Going forward, he can simply take money that had been appropriated for any sympathetic group of people, take the heat for his heartless decision, and then the Republicans can blame the Democrats if the Democrats try to stop those funds from being restored.

As always, and as I noted earlier, I do not think that anyone in Trump's orbit thought this through in advance.  Whether they did or did not, however, they are shameless enough to follow through on this, knowing that the five politicians in robes and enough Republicans in Congress will not put a stop to it.  Prepare for more hostage situations.