Madison was the main author of the Constitution, so it’s safe to say he understood how it was intended to work. The “primary control” he spoke of in the Federalist Papers is that the people elect the representatives they wish to govern them, and can replace them at the next election if they see fit. That’s all the discipline that an ambitious but virtuous public servant needs. For the rest — about 99 percent of them, give or take a percent — there is the “auxiliary precaution” of the written Constitution itself, which limits what the government can do and makes each of the three branches the suspicious and adversarial watchman of the other two. No wonder progressives have been complaining for the last 150 years that the Constitution is an outmoded and dangerously inflexible basic law; it’s designed to make governing difficult and to frustrate people like them who want the federal government to do a lot more than Mr. Madison and company wisely intended for it to do.
Well, be careful what you wish for, because you may get it. The current example: President Trump’s declaration of a national emergency in order to build a wall on the Mexican border.
As for the legality of Trump’s action, it seems he’s on solid ground. Congress long ago gave the president power to declare emergencies for almost any reason, and the power has been used liberally ever since. In theory, Congress can rescind the emergency, but the president can veto the rescission (and of course he will). Thus, in practice it takes two-thirds of both houses of Congress to overturn a declaration of emergency, making it all but impossible to stop a president from doing as he pleases. Ergo, we’re going to get a wall, and it’s not likely that the courts will do anything other than slow down the inevitable.
Since I have written approvingly of Trump’s efforts to regain control of the Mexican border, one might expect that I would approve of his most recent action, which is being sold as unavoidable in light of the inability of Congress to get anything done, and especially in light of the Democrats’ apparent (and utterly incomprehensible) determination to let in anyone who wants to come. Not even close. I think his action is far more dangerous to the Republic than tearing down all of our border defenses would be.
To be clear, illegal immigration is a very serious problem that we have spent more than 50 years ignoring and/or minimizing. There is plenty of blame to go around, from unscrupulous businessmen looking for cheap labor, to scheming Democrats who think all those immigrants will make it impossible for them to lose elections, to mushy moderates with a flawed understanding of compassion, to arrogant elites who feel entitled to their illegal nannies and maids.
It’s a problem that should have been solved long ago, and Congress has no excuse for having failed to act. But it’s a chronic problem, not an immediate emergency. To use a medical analogy, many serious and potentially fatal conditions require multiple trips to the doctor and the application of outpatient treatments and drugs to cure; but others require immediate attention before the patient bleeds out. We’re not bleeding out, but that doesn’t mean the problem will fix itself without appropriate treatment. Nor does it mean that a trip to the emergency room is the way to handle it.
The president’s emergency powers are vast, and have to be; emergencies happen, they’re unpredictable, and the response must be immediate and developed on the fly. Only a president is in the position to do that. A Congress of 435 unherdable cats is manifestly and by design unable to do anything quickly.
But power corrupts, and the vaster the power, the greater the opportunity for corruption and damage to the Constitutional system by which we are supposed to govern ourselves, rather than be governed by an arrogant elite or by one corrupted individual. The granting of the power to declare an emergency requires a significant amount of faith that it will be used responsibly, and the determination to make sure that it is. The president who gets away with an irresponsible declaration sets a precedent that the next president won’t hesitate to follow. And thus does tyranny begin.
Refusing to control our borders is dangerous and stupid, but a declaration of emergency when there isn’t one is far more dangerous and, in the long run, potentially catastrophic. Let’s hope wiser heads prevail. If not, it will be time to exercise our primary control.
And that doesn’t apply just to the president. Congress has to pass the necessary laws, and if it won’t, or can’t, act, then the intransigent nativists on the right and the open-borders looney-toons on the left should be given the opportunity to seek other employment. Just because a condition is chronic now doesn’t mean that, due to the refusal to treat it timely and responsibly, it can’t become an emergency in the future. That would give an ambitious and all-too-corruptible chief executive all the excuse he would need to gather even more power to himself. If that happens, Congress will take the blame, but the truth is that, the auxiliary precautions having failed to protect us, and we having failed to protect ourselves by exercising our primary control, we the people will actually be to blame.
Kenneth D. Gough of Elizabethton is a semi-retired businessman.