A Bipartisian Victory that Calls for a Conversation about Separation of Powers

One of my strongest recommendations, and, many would say, my most naïve and unrealistic recommendation for a “Way Forward” in the concluding chapter of my forthcoming book Reforming American Politics is that politicians and their supporters reach across the aisle in an effort to find enough areas of agreement to forge a coherent position that captures the best insights of those on both sides of the aisle or table, even if neither side receives the “full loaf” they were hoping for.

A while back, my hope for such a bipartisan legislative “compromise” on an important pubic policy issue was buoyed when a bipartisan “gang of eight” in the U. S. Senate passed a bill in 2013 for comprehensive immigration reform that included both improved border security and an arduous pathway to citizenship for undocumented immigrants that included the imposition of fines for having entered the country illegally (hence not being “amnesty” since amnesty means “no punishment” and fines are a form of punishment). 

But that was only a partial victory that was soon shattered when this bill died in the House of Representatives. In my book, I speculate that a contributing factor that made this victory short-lived was that, unlike the Senate, the House did not call together a bipartisan group of their members to talk through their disagreements in an effort to uncover common ground.

Since that exemplary example of bipartisan legislation on the part of the Senate in 2013, there have been all too few examples of such reaching across the legislative aisle. But my hope for a flourishing of such a bipartisan approach to legislation received a “spark” on February 16 when a bipartisan conference committee of Senators and House members agreed on a bill for a “compromise” package of immigration reforms that included $1.375 billion for a border “barrier,” which was then approved by both legislative chambers.

But, of course, that was not the end of this story. The distinction between how the lawmakers who reached the compromise and President Trump responded to the compromise is critical.

The lawmakers on the conference committee acknowledged that the law they passed gave no one everything they wanted but gave everyone something; the very nature of compromise. So, they could accept the bill that was passed.

President Trump, on the other hand was very unhappy with the bill, although he reluctantly signed it. But, contradicting his proposal in his recent State of the Union address that “we must reject the politics of revenge, resistance and retribution – and embrace the boundless potential of cooperation, compromise and the common good,” President Trump then did an end run around Congress by declaring a state of national emergency and pleging that he would find more money for his wall by tapping into funds that Congress had approved for other purposes (including military construction projects and some counter drug initiatives). It is this action by President Trump that calls for a conversation about when the exertion of  power by the Executive branch of government violates the separation of powers between the Executive and Legislative branches that our Founding Fathers so wisely established.

That will surely be a heated debate that hopefully can be orchestrated in a respectful manner; possibly going all the way to the Supreme Court. I do not have the expertise in Constitutional Law needed to sort through this complex issue. But I will offer two suggestions as to possible starting points for conversation

First, the National Emergency Act does not give a clear definition of what constitutes a national emergency. This omission creates great uncertainty and disagreement as to whether a given situation qualifies as a national emergency.

For example, politicians and pundits on the political Right point to the many cases in the past where presidents have declared national emergencies that have not been contested.

The response of politicans and pundits on the political Left argue that this proliferation of presidential declarations of national emergencies (starting long before President Trump came into office) have moved our government toward an “imperial presidency” that has diminished the proper role of Congress; especially the “powers of the purse” established in Article 1 of the U. S. Constitution; going on to argue that what makes President Trump’s recent declaration different from all previous declarations is that he has taken Executive action to spend money on initiatives to which Congress has passed legislation that explicitely denies such funding.

It is obvious from this impasse that the conversation that is needed should start by seeking  to more clearly define what constitutes a “National Emergency.” And President Trump did himself no favor when he declared that he didn’t really have to declare a national emegency to get his wall built; he did so only becaue he wanted to get the wall built “quickly” – which gives a strange meaning to the word “emergency.”

But there is a broader aspect to the conversatiuon that is needed; an aspect that emerges from the attitude that President Trump has taken toward the institutions of government thoughout his presidency that has now culminated in the current debate about his recent declaration of a national emergency.

In brief, President Trump has consistently shown disdain for the institutions of government beyond his Office and for the separation of powers so carefully delineated by our Founding Fathers. Two major examples are his consistent, ongoing view that the Department of Justice exists to foster his purposes and his neglect of the recommendations of various national intelligence agencies relative to the threat that Russia poses to our democratic way of life. This self-centered disregard for the constitutionally mandated roles for the institutions of government and the separation of powers is the bigger problem that begs for ongoing conversation. This is indeed a “constitutional crisis” and the separation of powers that has been the bedrock of the American democratic system must be protected against the onslaughts of President Trump and anyone else.