Last weekend’s glum Baylor Law School public lecture on presidential power nearly ground to a halt when someone in the audience inquired what might happen to our republic if President Trump simply refused to honor a Supreme Court decision that went against him. The scenario is no longer beyond the realm of possibilities in 21st century America — not with the Department of Justice now rattled by the president’s seeking favors for convicted pals, the U.S. Attorney general grumbling about intrusive presidential tweets and at least some federal judges displaying concern over White House criticism of a constitutionally prescribed independent judiciary.
Like or loathe him, President Trump has not only scrapped presidential norms extending back to George Washington but tested the limits of the Constitution like no other president. And he’s done so with a lot of excuse-making and rationalizations from way-too-accommodating Republican senators, representatives and activists who once upon a time proclaimed absolute loyalty to the Constitution. Now such talk often rings hollow. Many candidates running for Congress — including some of the 11 seeking to succeed Republican Congressman Bill Flores in the 17th Congressional District — frequently seem less interested in the potential and privileges of the institution than suiting up and reporting to the dugout to play hardball for President Trump.Show Full Article
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Lecturer and attorney David Schleicher glanced at me upon mention of President Andrew Jackson during last weekend’s presidential power lecture, so I very sketchily laid out the story for all assembled: When faced with an 1832 Supreme Court decision on Indian rights and state law spearheaded by old Federalist Chief Justice John Marshall that went against Old Hickory, Jackson supposedly seethed: “John Marshall has made his decision; now let him enforce it!” It’s a telling if apocryphal story of the trust Americans routinely place in elected and appointed leaders to govern by certain rules laid out by Framers of the U.S. Constitution, checks, balances and all. Not in the Framers’ plans: The notion that one branch would cede more and more of its authority to another in a slow-motion display of indecision, infighting and frustration. So much for ending the lecture on a bright note, despite Schleicher’s playing an excerpt from the musical “Hamilton” for everybody.
For the past several weeks, Trib Editor Steve Boggs and I have not only been conducting in-depth, sometimes contentious, rough-and-tumble editorial board interviews with Republican and Democratic candidates seeking to succeed Congressman Flores but editing their answers into some sort of coherence ultimately useful to voters seeking to make electoral decisions; fact-checking candidate claims (including one who denied President Trump withheld military assistance to Ukraine); and personally trying to better understand candidates’ arguments and ideological pitches amid questions of qualifications and policy stances.
As part of our interviews, we asked about Article I and a problem highlighted by everyone from raucous, right-wing House Freedom Caucus member Louie Gohmert of Texas to iconic California liberal Nancy Pelosi: the steady erosion of congressional powers enumerated by the Framers in deference to an increasingly powerful chief executive pushing the limits of Article II (which restrains presidential activities). In interview after interview, Republican congressional candidates, for instance, labeled the 2012 Deferred Action for Childhood Arrivals (DACA) executive memorandum by Democratic President Obama as presidential overreach, yet vigorously justified Republican President Trump’s 2019 Migrant Protection Protocols (MPP), a striking overhaul of our federal asylum law — and without congressional input.
Most also excused Trump’s unprecedented hijacking of appropriation powers strictly reserved to Congress by the Constitution: specifically, his siphoning off money appropriated by lawmakers for specific purposes, military and otherwise, to instead plow into his controversial border-wall construction. The Department of Defense is diverting $3.8 billion from other congressionally approved expenditures for wall-building, according to budget documents reviewed this month by the Washington Post. This is part of a broader plan to take $7.2 billion from the Pentagon budget this year for the same obsession. To justify this, the Trump administration has declared, among other things, the borderland in crisis. It employs an obscure (and, yes, congressionally approved) law that allows presidents to assume such powers in times of a White House-declared emergency.
Means to an end
“Well, that’s a different situation to me,” Waco homebuilder and former Secret Service agent Scott Bland, 48, told me, justifying Trump’s MPP immigration initiative (which has resulted in thousands of asylum-seekers living in squalid, overcrowded tent cities in dangerous Mexican border towns) but not Obama’s DACA immigration initiative (which provides temporary protection from deportation for immigrants raised in America): “You’ve got people on the border trying to illegally [cross into the United States]. So what’s the alternative? Let them in? You’ve got to do something.” And Marine veteran Trent Sutton, 45, fresh from the Texas A&M Bush School of Government and Public Service in College Station, defended a second round of funneling congressionally approved military funds into wall-building as an apples-to-apples situation, hardly inappropriate of the chief executive: “I view border security as being a part of national security. They’re one and the same. So using military funds in support of the construction of a border wall is in fact still using those funds for national defense and national security.”
So say two of the Republican congressional candidates far better-schooled on the issues than some I interviewed. (One candidate actually professed an inability to discuss Article I powers, even though she was running for Congress, which is rigorously defined by ... Article I.) Sutton and Bland’s views are thoughtful, reasoned, articulate. Yet they and other candidates for the 17th Congressional District seat insist Trump has proven a transformative figure precisely because he follows through on what he says he’ll do. As aerospace engineer George Hindman, 58, also constitutionally conversant, told me when I asked if Trump had benefited the Republican Party: “I think he has made it better because, no matter what side of the aisle you’re on, and I’ve heard this from voters, both Democratic and Republican, they want candidates who do what they say. I think there’s one thing that can be clear with President Trump, whether you like him or don’t like him: He said certain things and he’s done what he said. I think that is good for the Republican Party.”
The question, however, inconveniently gets down to the means as well as the ends. Is President Trump then to be excused for pursuing his goals by arguably circumventing the Constitution that so many Republican candidates claimed to cherish in previous elections, back when a much-hated Democrat occupied the White House and also employed executive action in ways federal courts (to their credit) eventually found constitutionally dubious? If federal courts and Republican lawmakers by contrast ignore or overlook Trump’s now and then running roughshod over Congress’ Article I powers, they may soon find themselves politically compromised.
Democratic presidential frontrunner Bernie Sanders has already noticed Trump’s success with go-along, get-along Republican lawmakers and declared his intention to declare a similar national emergency — this one on climate change, not immigration — to address what many citizens believe is a global catastrophe. Sanders also vows to busy himself with executive orders, including legalizing marijuana nationwide. Fellow candidate Elizabeth Warren vows to use executive action to wipe out student loans for 42 million people and ban fracking.
The National Emergencies Act of 1976 is a particularly dangerous law for all who fear tyrants, given it requires from the president of the United States mere employment of the word “emergency,” which isn’t even defined by the act and allows the executive branch access to dozens of other powers. It’s notable that the president and Congress were generally on the same page regarding dozens of emergencies declared since the act went into effect. It’s also notable that Congress has only twice sought to quash a presidentially declared national emergency. Both times involved President Trump’s use of the act to reroute funding from other specified purposes to border-wall construction — and both times the president vetoed these bipartisan resolutions.
Fly on the wall
“It is within his presidential authority to make that declaration,” College Station businesswoman and candidate Elianor Vessali, 43, told me. “Now, as far as acceptable behavior, I think again it goes back to a fundamental issue and explains why the president is acting this way, explains also why the electorate is frustrated and why voters continue to support the president. Maybe we would not have these actions and debates over whether or not this is an excess of [presidential] authority if Congress were doing its part and acting and taking care of the issues.” Vessali is correct, which is why her decision (and Hindman’s) to commit to joining the House Freedom Caucus if elected seems wildly incongruent, given the caucus’ grandstanding and divisive tactics, sometimes at the high cost of even conservative legislation.
Congressman Flores, 65, suggests Trump hasn’t pushed constitutional boundaries so often as some people (and the news media) think, though clearly friction is evident, even among some fellow Republicans.
“Congress has the constitutional responsibility to determine how defense dollars are spent,” Republican Congressman Mac Thornberry, ranking member of the House Armed Services Committee (and a longtime Flores friend), said in a terse statement after the Trump administration began rerouting money for a second year. “We take the Pentagon’s recommendations seriously during our deliberations, but the final decisions are contained in the bills passed by Congress and signed into law. Once those choices have been made, the Department of Defense cannot change them in pursuit of their own priorities without the approval of Congress. Attempts to do so undermine the principle of civilian control of the military and are in violation of the separation of powers within the Constitution.”
The Texas congressman adds that the border wall “should be funded, but the funding must come through the Department of Homeland Security rather than diverting critical military resources that are needed and in law.”
Among the crowded field of Republican candidates in Congressional District 17, the border-wall issue is a particularly complicated one for those who understand Congress’ constitutionally exclusive power of the purse. Todd Kent, 59, a Bryan-based political scientist and former university administrator in Korea and Qatar, suggests President Trump would have been more justified battling for border-wall funds within the constitutional guardrails established: “What I believe the president should do is he should go and he should continue to fight with Congress until he gets his money, OK? Because then what it does, it allows for our checks and balances to work, it allows it to be a public move. I think that what we had was Democrats fighting the president not necessarily because they cared about a wall but they didn’t want him to have a victory. So I would rather the president fight through Congress for it.”
The Trump administration’s ongoing penchant for boundary-pushing, mob-pleasing, intensely controversial policies testing the constitutional limits of executive power are indeed most evident in the realm of immigration. It’s an area that pits humanitarian concerns up against national security anxieties and, on a more primal level, pits compassion and human rights against the absolute worst in racism and xenophobia. And even when a bill offering concessions to all sides arises, someone on the far right must always scream “amnesty” to rouse his or her extremist base while someone on the far left stands ready to score political points with his or her own extremist base by making Trump part of the mix. Congressman Flores wearily recalls legislation in 2017 that would have provided border-wall funding and legal protections for Dreamers, eliminating fears of their being deported after years of being raised as virtual U.S. Citizens. This legislation arose when Republicans controlled the lower chamber.
“If we could get people in Congress to forget what letter is behind their name, D or R, and focus on what needs to be addressed, then we could move forward,” Flores told me Saturday. “A great example is back when we had immigration and border security legislation in the last Congress. The [Democrats] wouldn’t go for it, even though they always had previously. They’ve always supported border security and they’ve always supported programs supporting the Dreamers, yet they voted no this time because they didn’t want to give the president a victory. And we as Republicans wouldn’t throw up enough votes to get it done because some of our party thought it wasn’t good enough. So the combination of putting politics ahead of good policy and the desire to have ‘perfect’ ahead of good policy has really locked Congress down. When Republicans were in control, it was difficult for us to govern because we had factions that were trying to make perfect the enemy of good. And now that Democrats are in charge of the House, almost every single vote is political.”
To their credit, some local Republican candidates seem cognizant of the broader problem. When I asked Trent Sutton why I shouldn’t believe he’s a believer in an imperial presidency where Trump can do no constitutional wrong, the Marine veteran understandably bristled: “I fought for freedom for 21 years and to protect this nation. What I’m saying is definitely not advocating for imperialism. What I’m advocating for is that we get away from the partisan bickering and actually work together in Congress to address the things that we know that are good for all rather than playing party lines on both sides, because it happens on both sides. That’s what I’m advocating. I’m advocating for Congress to come together so that the president, regardless of who that president is, doesn’t have to be in that situation.”
And Scott Bland stressed that, during the several years he spent as a Secret Service agent after the 9/11 attacks, safeguarding politicians, he was privy to what statesmen can do when earnest about solutions and consensus-building, which may be one reason he declined to commit to joining the House Freedom Caucus, a group more prone to obstructive stunts than real conservatism: “Part of what makes me the best candidate for this, it’s not only my experience from the national security standpoint, it’s not only the fact that as a Secret Service agent, I’ve been the ultimate fly on the wall, but I’ve seen the best in the world of politicians. One thing people don’t understand, because all they do is read what’s in the paper and [see] what’s on TV, is when the cameras are off and the doors are closed, those guys and gals actually do for the most part work together pretty well.
“They know how to talk to each other,” Bland told me. “I’ve seen that interaction. I know how that works, so I wouldn’t go up there with this idea that it is a constant knife-fight. It’s not. I know it’s not.”
Democratic congressional candidate Rick Kennedy, a 57-year-old Austin-based software engineer and project manager, is also exceptionally insightful about the Constitution. He acknowledges how the problem of executive power has infected administration after administration, Republican and Democrat, with Congress’ authority in fast decline, partially due to the Framers mistakenly assuming that citizen lawmakers would be vigilant in protecting the powers of their own legislative chambers over presidential encroachment: “Basically, since the turn of this century, Congress has been ceding power to the executive branch. I’ll use Trump as an example — and I’m not saying Obama didn’t do similarly. People will argue that DACA is unconstitutional because President Obama does not have the authority to do stuff like that. OK. Well, President Trump imposes tariffs on Canadian steel under the National Emergencies Act of 1976, right? The mechanism that he’s using was put in place 40-plus years ago, but he’s pushing it beyond what anybody would have imagined at the time. And Congress rolls over and doesn’t do anything. They don’t amend the National Emergencies Act to put a 30-day approval period on that, right?
“Take some of that Article I, Section 8: Congress is vested to regulate trade with foreign countries. Instead, Congress rolls over. I believe the growth of executive power and the growth of executive action and the popular support for that grows out of a frustration with this divided and dysfunctional Congress that isn’t getting anything done. You get an executive in there who says, ‘I’m going to wave my pen and get stuff done’ or Donald Trump, who says, ‘Article II says I’m going to do whatever I want to do,’ and a large section of the population supports that because the legislative branch is not solving problems, is not getting anything done for the American people. That’s where this is growing from. I agree both parties do it, 100 percent. This is a bipartisan problem.”
The rear guard
Congressman Bill Flores concurs with most Republican candidates that the Trump administration’s controversial Migrant Protection Protocols policy was written within the framework of the Immigration and Nationality Act. The U.S. Court of Appeals for the 9th Circuit has allowed the government to continue to send asylum-seekers to Mexico while an appeal over its legitimacy is considered. (The Washington Post last week reported that immigration attorneys and migrant advocates say the Trump administration is phasing out its year-old MPP policy, also known as “Remain in Mexico,” instead prioritizing newer, even more restrictive programs that make qualifying for asylum in the United States extremely difficult.) And while the legality of the embattled DACA policy remains in limbo, Flores notes how “the irony is that in the years leading up to DACA, President Obama said he clearly didn’t have the authority to do that.” The U.S. Supreme Court is specifically poised to determine if the Trump administration’s 2017 termination of DACA is lawful — raising the spectre of U.S. Immigration and Customs Enforcement deportations right in the midst of presidential campaigning nationwide. Flores says one of the top priorities of his remaining months in office is pressing hard for a congressional solution to prevent Dreamer deportations, which could prove a public relations nightmare for the Republican Party.
“The area where I don’t agree with what the president’s done is the diversion of military funds to the border,” Flores told me. “Now, I can see how that can be rationalized because there are provisions under the law where if the president deems an issue to be a national security matter, then he is allowed to divert military funds and reprogram those funds as he deems appropriate. So there is a way to deem what was going on at the border a national security issue. I don’t 100 percent agree with it. I think he’s standing on reasonably good legal ground and reasonably good constitutional ground to do it. That said, I don’t feel comfortable with that. I haven’t jumped up and down and applauded that move on his part.
“The thing that would fix all of this, whether it’s DACA or the border-funding issue, is for Congress to take it up, and Congress has failed to do it,” he said. “I mean, Congress gets locked in these partisan struggles or else the Republicans, when we were in the majority, couldn’t agree on how to fix these things among ourselves. Some factions wanted to go in one direction, some wanted to go the other way, and we couldn’t govern because of that, because Republicans were fighting among ourselves. This could have all been addressed in the last Congress, 2017-2018, border security and DACA, if Congress had pulled its head out of its rear.”
One thing’s sure: The president’s obvious self-identification with President Andrew Jackson is hardly appropriate. As I noted last weekend, Jackson, for all his irascibility and backwoods brawling ways, was no Indian-fighting bumpkin when it came to the Constitution. He wasn’t constitutionally illiterate to the degree President Trump seems to be. The hero of the Battle of New Orleans had also served as a congressman, a senator and a judge and thus had more than passing acquaintance with the Constitution, still fresh in the minds of Americans in 1832, the transformative period when Frenchman Alexis de Tocqueville was gathering fertile material for his classic “Democracy in America.” Evidence even suggests that, in the wake of Chief Justice John Marshall’s decision on Indian affairs, Jackson quietly worked behind the scenes to defuse the situation and achieve the high court ruling’s key points. And when, in a major crisis marking the so-called Age of Jackson, South Carolina politicians claimed their right to nullify federal laws they didn’t like and even threatened secession over it, President Jackson looked to the old chief justice, of all people, for support as Old Hickory stood tall for the United States, the Constitution and the rule of law, including an independent judiciary. It was Jackson’s finest hour.
The current president, by contrast, needs close watching on constitutional grounds, even if some of his policy aims rate consideration. Reckless remarks such as “I have an Article II, where I have the right to do whatever I want as president,” compounded by highly questionable executive actions, not only invite but demand greater discernment by all who serve in Congress or aspire to it. Commendable Republican candidates such as Scott Bland and Trent Sutton demonstrate justifiable pride about their past public service — in this case, one in the Secret Service, the other in the Marine Corps, both in times of genuine national crisis. Yet given the battered and bruised constitutional prerogatives outlined in Article I, the greater question now is whether they’re fully ready for the unique rigors of congressional duty in Trumpian times.
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