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Trump’s overreach is making a weaker presidency
Inside the Constitution Center's museum in Philadelphia, a triangular table rests upon a teeter-totter-like pivot. On one corner of the table is a model replica of the Capitol; on another is the Supreme Court; on the third is the White House. Push down on any one corner, and the other two corners rise up towards the ceiling.
An interactive representation of our government's foundational theory of separation of powers, this table's movement shows how power grabs beget checks and balances. And how instability, not rigidity, marks the distribution of power across our three branches.
Evidently unaware of these political dynamics, President Trump jumped enthusiastically atop his corner of the table on Friday when he declared a national emergency with scant evidence of an emergency (he even said he "didn't need to do this") for the purposes of reallocating some Department of Defense (DOD) funds to build his "great" wall along the southern border.
Far from a display of strength, Trump's unilateral action exhibited his weakness. Despite not getting anywhere near the funding he wanted for the wall ($1.3 billion versus his December request of $5.7 billion), Trump was afraid to veto the budget bill that arrived on his desk Friday because doing so would force another partial government shutdown. With his approval rating lower than nearly all past presidents, Trump signed the bill and then unilaterally declared a national emergency.
According to Harvard political scientists Aaron Kaufman and Jon Rogowski, presidents tend to undertake unilateral actions when "their ideological conflict with Congress increases and when presidents are aligned with public attitudes." In other words, presidents typically work to expand their institutional power when it's relatively safe for them to do so.
Herein lies the problem for Trump. Because while his ideological divergence from Congress may be great, the majority of the public is not aligned with the president. According to a recent CNN poll, only about 30 percent of Americans thought this action was justifiable, meaning his unilateral action was risky and a public backlash is likely. In short, Congress is not going to be found sleeping at the switch, as it has seemed to be so often in the recent past.
As Rep. Adam Schiff (D-Calif.) noted on Sunday, "This is the first time a president has tried to declare an emergency when Congress explicitly rejected funding for the particular project that the president is advocating. ... If we surrender the power of the purse, which is our most important power, there will be little check and no balance left. It will not be a separation of powers anymore, just a separation of parties. So this is going to be a moment of truth for my GOP colleagues."
Even if Trump is able to veto the likely congressional resolution rejecting his declaration of a national emergency, he is laying the groundwork for future presidents to have less executive power because of the many other predictable constitutional responses arising from the courts and the states. Further, Congress may decide to amend and make more specific the language defining an emergency in the National Emergencies Act of 1976.
One of the under-appreciated aspects of the presidency is that the vagueness present in the Constitution's language of Article II is what has largely allowed presidents to become so strong over time. Ambiguity encourages creativity. Expressed intent and explicit language limits political actors, which is why attorneys sometimes argue over the placement of a comma or a period. They know that interpretation is akin to creation.
Many of our presidents were savvy politicians who knew that the art of politics involved making arguments that boxed in their opponents and redrew institutional boundaries in ways that increased their power. When President Richard Nixon blatantly overreached during the Watergate scandal, his successor was made weaker. Congress passed wide-ranging reforms redistributing power across the government for a time.
And for those concerned about democracy's end and this administration's apparent multitudinous corruption, this is the silver lining of Trump's devotion to offering up symbolic gestures designed to fool his base into believing he is a competent executive.
Aside from the above institutional responses to the purported "national emergency" at the southern border, as John Lawrence, former chief of staff to Speaker Nancy Pelosi (D-Calif.), has noted, "One of the most important trends in congressional history over the past half century has been the effort - often on a bipartisan basis - by House and Senate leaders to 'claw back' powers or impose restrictions on the president." In addition, the Trump administration has "a poor track record" when it comes to lower-court decisions. While some of these cases may be overturned by the Supreme Court to align more closely with the president's arguments, not all of the cases have turned on the decisions of liberal court appointees.
Fret not. Trump's tantrums don't create constitutional crises. Instead, they are governing crises for which the Constitution provides remedies. In short, his presidency may well be the impetus for us to finally rebalance the table and reestablish a representative government that follows more than just the will of the president.
Lara M. Brown, Ph.D., is an associate professor and director of the Graduate School of Political Management at the George Washington University, and formerly was an assistant professor of political science at Villanova University. She frequently appears on TV and radio programs as an expert on American political history, party development and national elections. Follow her on Twitter @LaraMBrownPhD.