When former President Barack Obama declared a national emergency because he couldn’t reach an immigration deal with Congress in 2014, Donald Trump had a tweet (there’s always a tweet).
Repubs must not allow Pres Obama to subvert the Constitution of the US for his own benefit & because he is unable to negotiate w/ Congress.
— Donald J. Trump (@realDonaldTrump) November 20, 2014
Today, it is President Trump who is subverting the Constitution because he is unable to negotiate with Congress on immigration.
At least this is the position of Rep. Justin Amash, R-Mich., whose name trended on social media Friday when Rep. Joaquin Castro, D-Texas, announced that Amash was the only Republican co-sponsor of a Democratic bill to stop Trump’s national emergency declaration to fund a border wall.
Amash explained his position in a series of tweets in mid-February:
A national emergency declaration for a non-emergency is void. A prerequisite for declaring an emergency is that the situation requires immediate action and Congress does not have an opportunity to act. @POTUS @realDonaldTrump is attempting to circumvent our constitutional system.
— Justin Amash (@justinamash) February 15, 2019
A thread on national emergencies and our Constitution:
Congress makes laws.
The president executes laws.
The Supreme Court decides cases.This is our constitutional system.
Congress cannot delegate legislative powers to the president by statute.
— Justin Amash (@justinamash) February 15, 2019
Congress should (and I will) work to repeal laws that ostensibly grant legislative powers to the president. But even if Congress does no such thing, such laws are void under our Constitution, and any emergency declaration by the president for a non-emergency is likewise void.
— Justin Amash (@justinamash) February 15, 2019
The Democrats are offering a bill to block Trump from assuming legislative powers regarding the border and Amash is on board. He’s following through on his promise from when the president first said he would declare a national emergency.
Of course this means many Republicans aren’t very happy with Amash at the moment, not only for opposing Trump but for undermining what they believe is a genuine national emergency: America’s broken borders.
But this only further speaks to Amash’s point. There will always be a long list of concerns that any president could deem a national emergency. Protecting so-called “Dreamers” was Obama’s justification for his executive order in 2014.
For the record, I too, think America’s borders need strengthening. I also believe Dreamers, innocent parties who illegally entered the U.S. as children, need protection.
This doesn’t mean an executive order is the way to do it.
Trump certainly was against Obama’s executive orders in 2014. Trump said on Fox at the time that since Obama couldn’t make an immigration deal with Congress, “now he has to use executive action, and this is a very, very dangerous thing that should be overridden easily by the Supreme Court.”
“We’re looking now at a situation that should absolutely not pass muster in terms of constitutionality,” Trump said of Obama five years ago. He even argued that Obama “could be impeached” for his executive overreach.
Amash made a similar point and comparison in 2017 after Trump issued his executive order banning immigration from certain majority Muslim countries:
1/ Like Pres. Obama’s executive actions on immigration, Pres. Trump’s executive order overreaches and undermines our constitutional system.
— Justin Amash (@justinamash) January 28, 2017
Bruce Fein, a lawyer and former government official for former President Ronald Reagan, has made the case that Trump’s border wall order might be the most unconstitutional national emergency declaration any president has ever made. “Trump’s national emergency declaration is worse than the 59 others declared by presidents since 1976 because it was employed to usurp the express power of the purse—the most important congressional check on executive abuses,” Fein observed at the American Conservative on Tuesday.
Whether or not you agree with Fein, it remains the case that most in Congress seem to equate the constitutionality of certain executive power with their own partisan leanings.
“We’re not just going to be waiting for legislation,” Obama bragged in 2014, “I’ve got a pen… and I can use that pen to sign executive orders and take executive actions and administrative actions.”
Conservatives called this Obama’s “imperial presidency.” Do any believe Trump is an imperial president?
One thing is clear: Either 2014 Trump was right about executive orders, or 2019 Trump is right. You can’t believe both.
Amash opposed both. Not because of his personal feelings about Obama or Trump, but because he believes the Constitution compels him too.
Jack Hunter (@jackhunter74) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is the former political editor of Rare.us and co-authored the 2011 book The Tea Party Goes to Washington with Sen. Rand Paul.
