Diatribes of Jay: Crossing the Line

[For a Sunday update on this fast-moving story, click here. For a lighter note on Colin Kaepernick, click here.]

Update, Sunday, February 17, 2019:

If you put your ear down close to your newspaper or monitor, you can hear our Republic begin to topple. A story that barely made the front page of today’s print New York Times conveys the sound.

The spineless and craven GOP is rolling over for Trump, allowing him to trample Congress’ “power of the purse” with only a whimper of protest. Barely ten Republican Senators—not a fifth of the caucus—reportedly will put their votes on the line to vindicate our Constitution and Congress’ now-most-used power. Its power to declare war already lies near forfeiture from disuse.

Far from guarding his precious Senate’s sacred prerogatives, Majority Leader Mitch is reportedly busy advising Trump how best to pull his power grab off. So Horatio has jumped the bridge. The bones of old Sam Erwin, the deeply conservative Southern constitutional law expert who helped bring Nixon down, are rolling over in his grave.

Congress may adopt a resolution in token protest, which Trump will veto. Then Congress will be powerless to override the veto. Instead, Congress will punt to the courts.

So our Constitution’s fate now rests in the hands of the Supreme Court’s two newest members, Kavanaugh and Gorsuch. Trump appointed both. Neither has had enough time on the high bench to know where all the bathrooms are. Neither has come close to the years required to feel the duty to preserve the balances of power in that fragile piece of paper. In the long arc of history, our Constitution may yet prove as durable as Russia’s.

Make no mistake about it. Hitler’s plan is unfolding right here at home. The bad in the Cabinet have driven out nearly all the good. There is almost no one left but right-wing ideologues, lackeys, lickspittles and lobbyists.

Hope, if any, rests with greenie Pompeo and the off-chance that Attorney General Barr wrote his unsolicited memo praising unfettered Executive power as a ruse to get the job. They are the only ones with the intelligence and experience, respectively, to understand the crisis. There is no one on the GOP side of Congress, or in the White House, with half the vision of Sam Erwin or our Founders.

So now’s the time to start shouting at your reps. Now’s the time to start marching in the streets. Now’s the time to jump up and down and be noticed. Now’s the time to prepare your family and your assets to move abroad. When they start coming to round you up, it will be too late.

The only wild card left is Robert S. Mueller III. His investigative report on Trump could jar us out of our national lethargy. But it had better come soon: the dominoes are already falling, and not many are left.

Don’t put too much hope in the old white men of Congress. If ever there were living exemplars of T.S. Eliot’s “Hollow Men” in government, it’s they. They spent months suffering a gratuitous government shutdown and trying to stave off another. Now they won’t defend their own “solution” or their power to enforce it.

Our leaders have devolved from vertebrates into political amoebae. No one seems to see that it could happen here. Unfortunately, overconfidence never staved off a calamity.

[The Original Post Follows:]
With his formal declaration of a “national emergency” on our southern border, President Trump has crossed the line between constitutional government and dictatorship.

There is no “national emergency” as he describes it. A “national emergency” is a dangerous situation involving sudden loss of life or property. It’s something that “emerges” quickly, like a major earthquake, Hurricane Harvey or Maria, the terrorist attacks of 9/11 or the Imperial Japanese attack on Pearl Harbor on December 7, 1941.

There is nothing similarly “emergent” on our southern border today. Desperate refugees from Central America have been seeking asylum and refuge here for years. There is no urgency because total apprehensions of illegal border crossers are at a multi-year low. Nor is there any war—neither the kind of “war on terror” that Dubya declared informally after 9/11, nor the kind that Congress declared formally after Pearl Harbor.

So Trump’s “national emergency” is a lie. But it’s a different kind of lie from the 7,645 lies and misleading claims that Trump reportedly has made since taking office. It’s not a “political” lie like Barack Obama’s supposed foreign birth. It can’t be spun as a “gross exaggeration” like the supposedly superior size of Trump’s inaugural crowd. And it can’t be rationalized by saying “all’s fair in love, war and politics,” like the lie that millions cast fraudulent votes for Hillary.

Instead, Trump’s new lie, if accepted, will have direct and concrete legal effect on American citizens, their lives and property. Many citizens who live near the border and now can cross it easily will have to walk or drive many miles out of their way. Others will find part of their own real property, whose legal boundary the Rio Grande River defines as it moves, inaccessible on the other side of an impenetrable barrier. Without formal condemnation by legal proceedings, the fence alone may violate the Fifth Amendment to our Constitution, which requires “just compensation” for any government “taking” of property.

Even more important, Trump’s new, big lie is a direct challenge to the power of Congress. One of Congress’ most important functions involves the so-called “power of the purse,” i.e., the power to spend money from the US Treasury. Our Founders gave that power exclusively to Congress, precisely as a check and balance on the power of the president.

Congress just exercised that power by explicitly limiting spending for a fence to $ 1.375 billion for 55 miles. By purposely and explicitly denying money for a longer wall, Congress repudiated the idea of any “national emergency” all along our southern border. Congress discussed and debated the issue at length—not least during the longest government shutdown in our history. Then President Trump himself signed the legislation into law.

What about that legislation and its meaning did Trump, Congress or the American people not understand?

So President Trump’s declaration of a national emergency is not just an official, formal lie having the effect of law. It’s not just a lie that directly challenges both Congress’ collective finding of facts along our border and Congress’ power to control the “purse.” It’s an unlawful presidential power grab—open, defiant, and without the slightest trace of subtlety.

Now all that remains to save our constitutional order is the other two branches of government.

What will our courts do? In the best case, a federal court will grant a temporary restraining order (TRO) striking the power grab down. The TRO will remain in place pending an expedited appeal to the Supreme Court, which will grant a permanent order repudiating the power grab.

In the worst case, the Supreme Court will dissolve the TRO pending appeal. Then, on appeal, the Court’s five conservative members will mumble something about the “unitary executive” and approve the power grab. In so doing, they will tilt the structure of our government permanently in the direction of one-man rule.

Even in that worst case, our Founders gave us a backstop. Congress is a third independent branch of government. Its “power of the purse,” at issue here, is one of the most important checks and balances on a dictatorial executive. But Congress has yet another power to enforce its control over the purse and the Executive: the power of impeachment.

In the best case, if the courts do not block the power grab, Congress will impeach Trump and remove him from office, for abusing the Executive’s power and violating our constitutional order. In the worst case, the Senate will refuse to convict and remove Trump, viewing the House as a nest of Democrats, rather than a co-equal part of our third branch of government.

We Americans have had hard experience with states of emergency. After the sneak attack on Pearl Harbor, we Interned our Japanese-Americans in concentration camps, claiming a national emergency. Decades later, a federal court ruled that there had been no evidence whatever of disloyalty, treason or sabotage among the Interned. The Internment had come entirely out of racist paranoia and was therefore unlawful.

The people whose rights the Internment violated included both citizens and lawful residents. They lost not only their liberty; many lost their land and homes, never to recover them. So today we recognize the Internment as one of the most shameful episodes in our domestic history.

But at least the Internment had plausible excuses. We had a real national emergency to cite: Congress had duly declared war, and our Pacific Fleet had been decimated in a sneak attack. The Internment was also temporary: it lasted only for the duration of the war. In contrast, Trump’s border fence will affect rights and land near the border indefinitely.

After 9/11, we grounded all air traffic. That “national emergency” was a classic case. We had suffered three sneak attacks, with massive loss of life, and the “national emergency” lasted only three days.

Our two other branches of government now have the unenviable task of chastening an out-of-control Executive making a power grab based on a lie. There is no emergency, no natural disaster, no war, and no massive loss of life. There is therefore no plausible excuse for the power grab.

There is, accordingly, no limit to the potential consequences of allowing it to proceed. Future Internments or the rounding up of journalists and other “enemies of the people”—all would become possible.

People who can see cause and effect better than Donald Trump understand this. So if the other two branches of government fail to act, we will begin to observe a phenomenon never before seen in our country. Slowly and softly at first, smart people and smart money will begin fleeing these United States.

Colin Kaepernick’s Good Work

Amidst all the angst and threat of Trump’s going rogue, there was a bit of good news Saturday. Colin Kaepernick settled his suit against the NFL and its owners for conspiring to deny him the draft, due to his on-field protests against injustice.

The settlement is secret, so we will never know what Kaepernick got. But think a minute. Would the NFL and its owners had demanded a gag order if Kaepernick had gotten nothing, or had even had to pay them?

Kaepernick deserves every penny he got. He carried the ball of justice downfield many yards. Like a good quarterback and leader, he ran mostly alone.

Kaepernick’s risky and courageous stand helped make justice a part of popular culture in an industry not known for political introspection. Perhaps part of his settlement will continue that good work.

As for me, I will go to my grave rarely having seen a protest as elegant, respectful, and dignified as Kaepernick kneeling on the field, silently beseeching our ruling class (including the NFL owners) and all of us to work harder to make our national values real. Freedom to protest injustice means nothing unless people actually do it.

[For brief descriptions of and links to recent posts, click here. For an inverse-chronological list of all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

[For an outline of universal health insurance without coercion, disruption of satisfactory private insurance, or a trace of “socialism,” click here. For analysis of the Virginia blackface debacle, click here. For an update on how Twitter subverts politics, click here. For analysis of women’s chances to take the presidency in 2020, click here. For brief comment on Trump’s State of the Union Speech and Stacey Abrams’ response for the Dems, click here. For reasons why the Huawei affair requires diplomacy, not criminal prosecution, click here. For how Speaker Pelosi has become a new sheriff in town, click here. For how Trump’s misrule could kill your kids, click here. For comment on MLK Day 2019 and the structural legacies of slavery, click here. For reasons why the partial government shutdown helps Dems the longer it lasts, click here. For a discussion of how our national openness hurts us and what we really need from China, click here. For a brief explanation of how badly both Trump and his opposition are failing at “the art of the deal,” click here. For a deep dive into how Apple tries to thwart Google’s capture of the web-browser market, click here. For a review of Speaker Pelosi’s superb qualifications to lead the Democratic Party, click here. For reasons why natural-gas and electric cars are essential to national security, click here. For additional reasons, click here. For the source of Facebook’s discontents and how to save democracy from it, click here. For Democrats’ core values, click here. The Last Adult is Leaving the White House. Who will Shut Off the Lights? For how our two parties lost their souls, click here. For the dire portent of Putin’s high-fiving the Saudi Crown Prince, click here. For updated advice on how to drive on the Sun’s power alone, or without fossil fuels, click here. For a 2018 Thanksgiving Message, click here. For a list of links to recent posts in reverse chronological order, click here.]

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Diatribes of Jay

16 February 2019

Crossing the Line

Update, Sunday, February 17, 2019:

Colin Kaepernick’s Good Work

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