If President Trump and his communications staff are to be believed, the executive branch is still actively considering making an end run around the legislature if, as seems possible, it is unable to convince enough members of Congress to provide funding for its coveted border wall. That this threat is largely being met with Jesuitical parsing rather than with widespread disapprobation suggests that we have strayed far, far away from our established constitutional order. Now, as a few years ago when President Obama did the same thing, the correct response to Trump’s threat is, “No, you damn well will not.” Now, as a few years ago, I am astonished that such a response has been so rarely forthcoming.
The position at which President Trump has belatedly arrived is a farcical one. As recently as yesterday, Trump insisted that he would be within his power to build his wall in spite of Congress. But why, then, does he continue to ask Congress for permission? Why, then, was he sufficiently exasperated with Nancy Pelosi’s intransigence to have stormed out of a recent meeting? Why does he cast Democrats in Congress as his opponents? And why is the government shut down? The answer is as simple as it is boring: President Trump is asking Congress to give him the funds because, legally, President Trump needs Congress to give him the funds. He knows that. I know that. Everyone making bizarre, post-rationalizing arguments about how we might squint at this or that law knows that. For Trump to turn around and say to Congress, “well, thanks for the advice, but I’m going it alone” would be for him to declare himself a monarch. Americans are supposed to abhor monarchs.
Do they still? Perhaps not. After all, our last president did exactly the same thing, and he largely got away with it. For years, Barack Obama explained to those who were pressuring him to help the “Dreamers” that he couldn’t do so without explicit legislative reform. Over and over and over again, Obama openly conceded that he couldn’t act alone; that he wasn’t a King; that he wasn’t an Emperor. And then, one day, he turned around and said, “Actually, I can do it anyway. If Congress won’t act, I will.” Nobody sensible believed that Obama’s view of the law had changed. Nobody should believe that Trump’s has, either.
In free countries such as the United States, we write down our laws so that the citizenry is able to comprehend the rules without difficulty and, thereby, to push back against governmental caprice. For this system to work, our laws must be written plainly; their terms must be interpreted according to their original public meaning; and, crucially, those who have been tasked with enforcing them must do so in good faith. The lattermost of these rules becomes ever more important as the statutory thicket grows.
Suffice it to say that our government — and our partisans — are not acting in good faith. It was a national disgrace that Barack Obama responded to Congress’s declining to agree with him by engaging in clever word games, and it is a similar disgrace that his successor is threatening to follow suit. As was the case with the Dream Act, our present impasse presents no great political mystery, nor are we laboring under any misconceptions as to where Congress stands: As of now, it has steadfastly declined to provide its blessing. In the face of such a refusal, the correct response from the White House must be, “Okay.” It must not be, “Let me consult with my lawyers and see if we can combine a few esoteric interpretations into executive carte blanche.”
In 1803, Thomas Jefferson warned that Americans’ “peculiar security is in the possession of a written constitution; let us not make it a blank paper by construction.” We must follow this advice with our statutes, too, for if we do not we will be complicit in the destruction of the greatest innovation in the history of government. To permit presidents to circumvent quotidian policy disputes by appealing to a phantom Too Important Clause is to tear up James Madison’s Constitution and to sanction an alternative settlement within which any sufficiently frustrated executive is able to delve deep into the statutory well and find a watery justification to get his way. “Emergency,” “crisis,” “prosecutorial discretion” — these words all mean something concrete. If, when things get tough for the president he can always find an Enabling Act somewhere in the forest, then we do not have a system of government at all. We have a dictatorship. How ironic it would be if historians looked back and concluded that the Anglo-American preference for parliament was defeated in the end not by Charles I or James II; not by George III or the Declaratory Acts; and not by the panoply of evil, masquerading isms that stained the last century in blood; but by simple partisanship, which turned us first into sophists, and then, bit by bit, into vandals.