Sister Ann Coulter was not happy when the president decided to cut his losses and pay civil servants again. “We put this lunatic in the White House for one reason,” she complained in a podcast. Coulter wants the wall, right now. “He doesn’t need to declare an emergency” to do it.
Laurence Tribe tweets in response: “No! Inherent presidential power as C-in-Chief dsn’t give Trump the power of the purse. We fought a revolution to end such royal power. And SCOTUS settled the issue in the Steel Seizure decision in 1952: Not even a war entitles POTUS to spend money w/out Congress’ authorization.”
Bless his heart, but Tribe actually promotes the idea that constitutional law and Supreme Court decisions limit presidential power. If Steel Seizure won’t to it, perhaps Nathan Hale and Patrick Henry will carry the day. They do not. No law or tradition of revolutionary resistance can restore these limits. We can’t get our liberty back if we think we still have it.
Presidential powers are up for negotiation, domestically and internationally. Did Congress think when they left the field, no one would show up to do what they used to do? President’s powers as commander-in-chief, including power to spend money, have expanded more than legal scholars like Tribe think. If Trump thinks he can get away with it, he’ll finish the wall without congressional authorization.
Like a two-year-old, he tests limits everywhere he can. Moreover he can’t control himself, throws tantrums, and thinks the universe owes him more respect than he gets.
Quick research shows that Congress appropriated $1.2 billion in 2006 for secure fencing. About 700 miles of fencing is built, about half to stop vehicles, and half to stop foot traffic. We cannot even estimate outlays for materials and labor since 2006, since construction costs for the fence combine with other expenses in Homeland Security’s budget. The feds happily ask for more money, when they cannot tell us what they have already spent.
Total length of the border is 1,954 miles. We have some kind of barrier up for about thirty-six percent of that distance. The percentage goes down to fifteen percent if you count only the solid pedestrian fence. For Trump forces, five billion dollars seems like a modest down payment on the rest of the wall.
We say Trump met with total failure in the shutdown – Coulter certainly thinks so. On the other side, we have to remember that part of Trump’s method is to test constantly how far he can go. He did that with the travel ban. Many of his tweets show persistent effort to expand his power as far as he can. That’s one reason cartoonists put him in a diaper. Like a two-year-old, he tests limits everywhere he can. Moreover he can’t control himself, throws tantrums, and thinks the universe owes him more respect than he gets.
He learned a lot from the shutdown. Another thing to remember about two year olds: they learn fast. To begin with, he learned Pelosi and company will not negotiate with him. So he floats emergency powers due to a so-called crisis at the border, executive orders with or without national emergencies, another shutdown showdown, and so on. If he had a babysitter, she would quit faster than his next cabinet appointee.
Solid actions, such as stealing money from the treasury to build the wall, could get him in actual trouble.
Trump has only two criteria in mind as he conceives these moves: 1) impact on his reelection chances; 2) likelihood of impeachment. So far, he has not had to worry about whether Republican party leaders, or the rest of his party in Congress, will back him. He has no friends, only sycophants. If he wins reelection, pundits will blame the voters, Democrats will blame the pundits, and Ann Coulter will smile. Yet she called him ‘this lunatic’ before anyone else did.
Trump knows his tweets come and go. Solid actions, such as stealing money from the treasury to build the wall, could get him in actual trouble. He sees that Obama stole billions from the treasury to conduct a secret, illegal drone war for years, but the precedent for commanders-in-chief and their secret intelligence agencies to conduct covert, illegal wars had already been well established by Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush, Clinton, and Bush II, so Obama had tradition on his side. We do not have a lot of precedent for funding a border wall, except for the portion already built.
Thus the battle over the wall will continue, but Trump has learned all he needs to know about results of a shutdown. Easiest path is to continue building the fence little by little, with bits of funding from here and there. He wants to accelerate the process, so he asks Congress to approve a substantial package. When he says he wants to go ahead without congressional approval, it’s another test.
By the time Trump secured his travel ban, the idea had undergone so many court tests no one was sure in the end what the feds could and could not do. The courts did affirm that the president is within his powers to impose a ban, with some restrictions. So the courts gave Trump what he wanted in the end. He would like to see a similar process unfold with border security.
The only outcome that matters for many is the outcome of the 2020 election, but I’d say we have more at stake than which party winds up on top.
Coulter may call him a lunatic, but Trump has a proven record of getting most of what he wants. We can readily say that Pelosi outsmarted him in this first round, but the two are not done with each other. We have two years of political conflict between Pelosi’s House of Representatives and Trump’s White House coming up.
The only outcome that matters for many is the outcome of the 2020 election, but I’d say we have more at stake than which party winds up on top. Underneath that, as you can tell from these comments, are two other questions. Can Congress begin to organize itself so as to contest executive power effectively? If so, will the executive branch begin to accept limits on its power, whether imposed by Congress, the courts, or public opinion? With party warfare at the forefront, answers to both questions look negative for the upcoming congressional term.