Congress lets president do its job; reform of national emergencies needed

Declaring a national emergency, President Trump's way of rounding up funds for the Wall, is either a national scandal or a routine political maneuver.  Voters may get to make their choice.

Whatever it is, the fault for the latest crisis is squarely owned by Congress.  By blithely passing off its constitutional powers to the president, it is now faced with a president making the most of the opportunity.

Sen. Lindsay Graham has said that Congress refused to allow Trump to spend funds in ways it had authorized previous presidents, so he had to act on his own.  That's not how it is supposed to work.  When Congress sets spending priorities, the president cannot flout that decision just because he favors another policy.

The problem is not that Congress has rejected more wall-building.  The problem is that Congress has given the president the tool to ignore its constitutional control of federal spending.

Another understanding about how the federal government is meant to work within the terms of the Constitution has been eliminated.  Its disappearance joins a growing list of evaporating constitutional customs, altering the American system of government.  People voted for change, and they are getting it.

Presidents have used their power to declare a national emergency for a wide variety of reasons, from blocking the assets of certain enemies to prohibiting the import of "blood" diamonds to responding to the 9/11 terrorist attacks.

Trump has been criticized because the immigration threat is not newly urgent and has been diminishing in recent years.  

So why call it a national emergency now?  It looks like a mere political ploy.  Even so, it takes advantage of the possibly unjustified precedents established by assertive presidents acting in the absence of Congress.

What's different about Trump is that he has acted right after Congress expressly rejected the spending and precisely because of the congressional rejection.  That had not happened previously.  And his declaration was based on inaccurate or false data.

A national emergency should be an urgent situation that can be easily recognized by members of Congress and average voters.  It should not be a matter of politics, which this declaration surely is.  Consistent with his approach throughout his presidency, Trump wants to keep the political promises he made when he ran.

Congress may try to reject his declaration.  Much will depend on how Republican senators vote.  There must be enough of them to override his inevitable veto.  It is a virtual certainty that GOP senators will not abandon their loyalty to their president, though he shows them no such loyalty.

The declaration has also gone to court.  Opponents claim that Trump's action violates the separation of powers and that he cannot ignore the congressional power of the purse.  

They will expect a conservative Supreme Court to be more supportive of the Constitution than of the president.  Maybe.

The Court could well refuse to decide the matter.  It could simply say that Congress can pass laws about national emergencies, as it has in the past, leaving it up to the lawmakers to decide this matter, not the judiciary.  It might find that nobody has standing to make a legal challenge.

Dealing with Trump's declaration or at least future so-called national emergencies places the issue directly before Congress.  Senators Susan Collins and Lamar Alexander of Tennessee, both Republicans, say they oppose Trump's declaration.  They should come forward promptly with a bill to limit presidential power.

New limits in declaring national emergencies could be enacted.  They might be required to sunset in two weeks or a month.  That would give Congress the time to consider legislation authorizing further action.  These days Congress can reconvene quickly.  There's no need for give the president a blank check. 

This approach could be especially useful where the president is using funds that had been appropriated for other purposes.

Two classes of emergency might be established, cutting down on the use of a broad declaration to cover targeted issues.  A two-tier approach would reserve the declaration of a national emergency to events having national effect.

As for the Trump declaration, Congress could ban using any funds under any appropriation for spending on a border barrier above the level set in the Homeland Security budget.  

Even if the president vetoed it, the bill would give political wiggle room to Republicans who want to put some space between themselves and Trump in the 2020 elections. 

Reversing Trump would be a declaration that Congress is beginning to reassert its lawful powers.  The Wall is not what's most important.  The Constitution is.