So this is how liberty dies — with a rambling, incoherent monologue. President Trump’s bizarre — and, to be brutally honest, frightening — Friday morning appearance in the Rose Garden of the White House to announce that he’s invoking extreme presidential powers to declare a “national emergency” and build border wall that Congress refused to authorize was, in many ways, that moment that Trump’s harshest critics warned about after his shock election as our 45th president.
And yet it was striking that when Trump’s dictator move finally came, there was a lot more banality than evil. After all, our general experience in conceptualizing an authoritarian power grab comes from the History Channel and grainy newsreels of 1930s’ autocrats thumping their chests. This was something else — in every sense of the phrase.
The import of what Trump was actually doing — triggering one of the most significant constitutional crises in American history — was buried in the alarming incoherence of the delivery. Instead of making the case for his bogus “national emergency," the short-fingered-vulgarian-in-chief presented an urgent argument for the 25th Amendment, the procedure for removing a president who is unwell.
There were so many moments in Trump’s unscripted and unhinged address that could have been a major scandal — had it been any other president, or had the bombshells not dropped at a rate of one every 10 seconds or so. For example, describing his conversation with China’s President Xi in a racist pidgin English — not to mention the authoritarian sentiment he endorsed in the riff, which was executing drug dealers. Or the most anti-free-press president in U.S. history yelling at a journalist to “Sit down!!"
We shouldn’t give Trump a free pass for all that craziness, but it’s critical not to take our eye off the ball. After a long era in which U.S, presidents have expanded and occasionally violated America’s constitutional limits on executive power, Trump has plowed through that democratic guardrail at 100 mph, and any system of checks and balances now teeters on the edge of the abyss. It’s wrong not to recognize there’s a history of POTUS power grabs (more on that in just a second), but this kicks it up several notches. Never before has a president claimed authority to spend money on a project that had been so clearly rebuffed by Congress, the branch of government that is supposed to control the government’s purse strings.
I’m not going to waste a lot of time here on the obvious: Trump’s national emergency is fake. Unauthorized border crossings — the raison d’être for such a bold measure — are actually at their lowest levels in years. Indeed, Trump invoked a plethora of outright lies about the sources of illicit drugs and other made-up statistics to justify what is nothing more than a campaign promise to please his xenophobic base. The only crisis on the southern border is a humanitarian crisis — the increased flow of refugees fleeing crime-ridden Central America, coupled with increasingly inhumane treatment by the American government.
Indeed, the unbearable fakeness of Trump’s national emergency has led to overconfidence that it will be reversed — either by Congress (although that would require some profiles-in-courage type stuff from GOP representatives that we haven’t seen in decades) or the Supreme Court (although Mitch McConnell and Trump have tipped that scale to the right). I have no such confidence.
Trump’s autocracy play didn’t come out of nowhere. Like the proverbial frog in a pot of boiling water, we’ve been soaking in the hot tub time machine of an increasingly imperial presidency for at least three-quarters of a century, and Congress, the courts and, yes, the voters — us — have been OK with every dial turn of the stove. That’s created a legal momentum that will make Trump hard to stop.
Take a step back into history, to 1973 — the year that Watergate exploded. The historian and confidante to Democratic presidents Arthur M. Schlesinger Jr. put the phrase “the imperial presidency” at the front of the national conversation that fateful year with a best-selling book of the same name. Schlesinger, an FDR historian, traced the evolution from a shockingly low-key presidency of the 19th- and even early 20th century to the executive branch’s explosion with the New Deal. Then came World War II and the so-called national security state, with increasing power vested in the president’s National Security Council, the military-industrial complex, and spies secretly overthrowing governments from the Congo to Guatemala to Iran.
Watergate’s exposure of the abuses of power by Richard Nixon and the 37th president’s downfall were supposed to be a happy ending to the story of the imperial presidency. The scandal and Nixon’s 1974 resignation spurred on Democratic reformers to enact a flurry of legislation to restore the checks and balances that the Founding Fathers had intended.
The best known is the 1973 War Powers Act, which requires a president to seek congressional approval for any extended military engagement. Another that received too little attention — until the last two months or so — was the National Emergencies Act of 1976. What that bill essentially did was give the president some more leeway to take certain executive actions — like imposing economic sanctions on alleged rogue foreigners, or move military dollars around — but also created a new mechanism for Congress supposedly to make sure a president never assumed dictatorial powers.
But something went wrong. More than four decades later, the U.S. military is engaged in more conflict in more nations than any time in our history (Yemen, Somalia, Africa), with arguably none of this properly authorized by Congress. And now the president has used the 1976 emergencies law for exactly the kind of gross abuse of power the law was intended to prevent. What happened? By creating a new framework for Congress to check presidential power — and then lacking the political will, or courage, to ever invoke it — the laws had the unintended effect of strengthening the imperial presidency. That’s because when presidents exceeded their authority and weren’t challenged, excessive authority was now normalized.
Odd as this sounds, you can at least credit Trump for being fairly open and transparent about Friday’s power grab. Not so with the Ronald Reagan administration, which reacted to an explicit congressional ban on aid to Nicaraguan rebels, the Boland Amendment, with a scheme to conduct secret, unlawful trading of weapons with our adversaries in Iran in an effort to free hostages, and then funnel the profits to Nicaragua’s contras. Not only was Reagan not impeached for this end run around Congress — the Iran-Contra scandal — but the key aides who were convicted of crimes were pardoned by Reagan’s veep-turned-successor, George H.W. Bush. Virtually no one raised a peep about the pardons — which arguably set the stage for future abuses of presidential power.
George W. Bush faced an actual national emergency in 9/11 — which was the excuse for a string of abuses of power that included a deceitful campaign to attack people who had nothing to with the 2001 terror attacks, imposing an unprecedented regime of domestic spying on Americans, violating both international conventions and U.S. law on torture, and creating a concentration camp at Guantanamo Bay. None of this was seriously challenged. Bush 43′s presidency also included a major increase in the use of so-called signing statements — declarations that he wouldn’t follow various acts of Congress.
How did presidents get away with this? A lot of it had to do with the partisan fault lines that have emerged since Watergate. As the most politically engaged folks — including the electorate — grew more partisan, people cared not about process but about outcomes. They only wanted to win. During Bush 43′s reign, many of us warned that if Congress and the courts didn’t restrain the out-of-control executive branch, it would be foolish to expect a Democratic POTUS to roll things back.
Arguably, Barack Obama proved us right.
Not only did the Obama administration not hold their predecessors accountable for breaking so many laws, but the 44th president fulfilled those worst fears by expanding some of the abuses of the Bush-Cheney era — firming up the notion of targeted assassinations by flying death robots and bringing the nebulous “war on terror” and its dubious justification to new regions of the planet. He even continued "signing statements.' Thwarted by McConnell and the rest of Congress on his domestic agenda, Obama increasingly turned to executive fiat to keep “Dreamers” in the United States, act on climate change, and implement parts of Obamacare. Most liberals praised Obama because they liked the policies — instead of questioning how a future demagogue might up the ante.
It seemed that only a few historians and legal scholars sounded the alarm bells. “For decades, Congress frittered away control over its authority, including the power of the purse,” wrote George Washington University constitutional expert Jonathan Turley, who fully expects Trump to prevail on the wall “emergency.” The Princeton historians Kevin M. Kruse and Julian E. Zelizer, authors of a new modern American history called Fault Lines, argued in an op-ed that even though the Robert Mueller criminal probe may restrain Trump, “it’s important to remember that the ‘imperial presidency’ will outlive any one president unless more is done to institute real checks and balances on the office itself.”
In other words, the problem of electing a dangerous demagogue like Donald Trump has been compounded by the imperial blueprint that we drafted for him. In the coming months, Congress will hold hearings on keeping Trump’s team accountable, and may even initiate impeachment — but that’s not enough. Our lawmakers need to try again, as they did in the 1970s, to draft new legislation to make sure that an American president can’t bomb people all over the world or spend our tax dollars without the express approval of the people’s elected representatives. For example, we need a “national emergency” law that will make it not only not so easy for the president to declare one, but virtually impossible.
But that won’t happen unless we, the people, get behind it. That means actually caring about the process and the Constitution — even when it’s our own political party and a president that we like who’s committing the abuses. Sure, the next Democratic president could — if Trump gets away with this — declare a national emergency to attack climate change or gun violence. But I don’t want to ratify that kind of authoritarian America, and neither should you, whether you’re a Democrat or a Republican.