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Budowsky: Roberts Court faces its own state of emergency

Greg Nash

With President Trump declaring a fabricated state of emergency that would destroy the fundamental role of the legislative branch of government, the eyes of the nation will soon turn towards the United States Supreme Court, and in particular Chief Justice John Roberts.

While this column will emphasize the historic decision the Supreme Court will ultimately make to uphold or reject the state of emergency declared by Trump after Congress rejected his plan to spend huge sums of money on the so-called border wall, the Supreme Court faces its own state of emergency on a wide range of issues that will dramatically affect its role and standing in American life.

It was never the intent of any previous Congress to grant any president the power to destroy the authorities of Congress granted under Article I of the Constitution.


After Congress explicitly rejected the president’s spending proposal for the border wall, it would be an unconstitutional usurpation of the authority of Congress under Article I, and in fact an attempt by the executive to thoroughly destroy the legislative spending authority clearly provided by Article I, for the president to fabricate a national emergency that is disproven by his own words and effectively disputed by testimony before Congress from his senior military and intelligence advisers.

The House and Senate will probably vote to overturn this state of emergency, though without enough votes to override a presidential veto. It will create major political problems in 2020 for GOP members who vote to destroy their own constitutional authority and must explain to voters which military bases should lose financial support, and which programs for drug interdiction they would cut, to finance a wall those voters do not want.

There is a real danger that a series of 5-4 party-line votes, with Republican justices backing Republican interests on hot button issues from Roe v. Wade to voter suppression against minorities, from aggressive gerrymandering to allowing wealthy donors to spend unlimited money to buy elections, could lead to a collapse of credibility for the court with half the nation or more.

It was a judicial tragedy that Justice Anthony Kennedy chose to retire when he did and was replaced by Justice Brett Kavanaugh, who will probably destroy the delicate balance that Justice Kennedy brought to an evenly divided court.

If this occurs, the destruction of the legacy of Justice Kennedy would put an enormous judicial, legal, historic and political burden on Chief Justice Roberts. How he resolves these burdens will determine whether the highest court in the land will maintain its historic credibility, reputation and stature as a neutral arbiter of the rule of law, or will be widely viewed as another weaponized instrument for the bitter divisions, partisanship and extremism that define the Trump years.

I offer no opinion here, only alternate scenarios, about the role Chief Justice Roberts will play as great legal events unfold.

While I am certainly a legal liberal by standards of Supreme Court jurisprudence, my standard is not whether Roberts or the court majority agree with me on every major issue. What matters is whether the chief justice steers the court towards a moderation and balance which will maintain its historic credibility as an unbiased adjudicator of law, or whether he steers the court towards a series of high profile 5-4 party-line votes, in which five Republican justices make the court a legally lethal weapon of the Trump presidency, Republican Party or conservative movement to the exclusion of all other Americans.

My hope is that Chief Justice Roberts rises to the occasion. The court that will decide the legal fate of the Trump state of emergency faces its own judicial state of emergency.

If Supreme Court cases are decided by party-line votes of Republican justices, the ill will engendered from a majority of voters will create a powerful movement for the next Democratic president and Congress to add new justices to unpack the court and restore balance, justice and equality under law for all Americans.

Budowsky was an aide to former Sen. Lloyd Bentsen (D-Texas) and former Rep. Bill Alexander (D-Ark.), who was chief deputy majority whip of the House of Representatives. He holds an LLM in international financial law from the London School of Economics.

Tags border wall funding Brett Kavanaugh Donald Trump national state of emergency Supreme Court

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