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First Principles: When Is Executive Action Acceptable?
On Friday, President Trump took the step of declaring a national emergency for the purposes of helping build a wall on the US border with Mexico. I do not wish to litigate that decision here. If you want to discuss the merits or details of that decision, we already have a great conversation about that which you can find here.
Rather, I want to discuss the general principles that make one kind of presidential action acceptable and another not acceptable, and where the line should be drawn between the two.
I prompted by this comment in the above-mentioned thread from Ricochet member @manny. I had posed the question, if this was such a national emergency, why wait until now to declare one. Manny replied:
[The President] gave Congress the deference to tackle it first, which would have been the preferred method, but they punted. Given they punted, there is no alternative but to declare an emergency. Nothing is being done to solve the crises. So it’s time to take executive action.
If you want to see the full comment and its context, you can find that here.
I should correct something in this statement. Congress didn’t “punt,” they examined the situation and decided they did not share the President’s evaluation, and chose not to fund his proposed solution.
But this is interesting as a statement of general principle.
So, if the President sees a crisis or crises, asks Congress to approve a proposed solution, and Congress chooses not to approve the President’s proposed solution — Is it acceptable for the President to take executive action and do it anyway?
I think everyone reading this would object if a President Harris asked Congress to fund a Green New Deal, and when they refused, declared an emergency, and spent the money anyway, claiming that Congress “punted” and that “Nothing is being done to solve the crises. So it’s time to take executive action.” (After all, what could be a bigger existential emergency than climate change?)
So where is the line then? What makes the Trump example okay, but the Harris example bad?
I should state, unambiguously, that I see neither example as acceptable. It is not acceptable for a President to use executive powers to do an end-run around Congress. It might be different if Congress had not or could not specifically weigh in on the issue. But in the case of both the real example and the hypothetical example, the plan was presented to the Congress, they refused the President’s proposed solution, and the President claimed extraordinary executive powers to do otherwise. Presidents can and do frequently have their legislative will thwarted by Congress. It is not acceptable for them to then claim it is an emergency and do it anyway.
I’d also like to say, it makes me very uncomfortable to see a President declare an emergency and then use the military to do something that the legislature refuses to do. It strikes me as not only wildly inappropriate, but dangerously anti-republican, not only in the action itself, but the precedent it sets. The action smacks of despotism. The precedent is potentially republic-ending.
But perhaps not everyone shares my evaluation. Maybe I’m all turned around on the subject. Maybe there’s some angle I’m missing or some distinction I’m not drawing.
So I want to pose a few questions for discussion:
What is the general principle at work here? When is it okay for a President to engage what is, in essence, legislative action, when Congress refuses to do so?
And to those of you who approved of President Trump’s action on Friday:
Where are the lines between what is acceptable and what is not? And what is the limiting principle here?
Published in General
Good questions worth debating.
I’ll begin by suggesting that the first quotation you cited was a weak defense of the President’s actions, in that the President certainly did have other choices: we are not facing an existential crisis at the southern border.
Having said that, I’m going to take exception with much of what you wrote.
It’s perfectly acceptable if it’s legal. Nowhere is it written that, if both the President and the Congress have it within their power to do something, the President must refrain from doing it if the Congress doesn’t like the idea. You, Fred, may find it “unacceptable,” but my standard is legality, and there’s nothing inherently illegal about the President choosing to do something Congress is disinterested in doing, if it is within his legal authority to do so.
Yes. The President’s proposed solution was that Congress would allocate funds to build the wall. Congress refused to do so. However, Congress did not prohibit the President from building a wall; they merely refused to allocate funds specifically for that purpose.
That’s an important distinction. If Congress had passed a bill prohibiting the construction of a wall, and had overridden the almost certain veto that would follow it, then yes, the President would not have legal recourse to construct a wall by other means. But Congress didn’t do that. Rather, Congress said “we are not interested in funding your wall.”
Fair enough. Congress has that legal authority. The President, on the other hand, has legal authority to declare emergencies and to then reallocate resources, within various statutory constraints, to address that emergency. It seems quite unlikely that this particular declaration of emergency is in any way illegal.
Again with the “acceptable.” You’re asking a legal question. I don’t know the technical answer to it; probably it is somewhat ambiguous. The courts will resolve it, and then we’ll know whether or not the President overstepped it.
While I don’t approve of invoking emergency power in this case, I don’t think it’s particularly ground-breaking, and I suspect it’s legal.
PS I’ll say it plainly: I think “acceptable” is a weasel word here. “Legal” or “Constitutional” are the relevant terms here. In my opinion.
Okay, Hank. Can you state your position in the form of a principle?
One that applies regardless of who the President is and what action they’re taking.
Sure.
First, the President must adhere to the law.
Secondly, the President should do those things that he believes are in the best interest of the United States.
So if President Harris asked Congress to fund a Green New Deal, claiming it was in the best interest of the United States, and when they refused, declared an emergency, and spent the money anyway, you’d find that acceptable as long as she complied with the law?
I heard the actual language of the emergency law. If you combine that with the fact that the Carteles control everything in northern Mexico regarding illegal entry into the United States, I think he’s entitled to do it. The wall obviously gives the border control people more operational and fiscal leverage and they need it.
You keep using that word. Define “acceptable” to me. Are you asking if I’d like it? What are you asking, precisely?
(Because I wouldn’t like it. I liked essentially nothing President Obama did, even the legal bits.)
UPDATE: And I’ll wait for your answer. Because I think this discussion is likely to be fruitless unless we actually understand what you’re asking.
That’s beneath you. Show some respect, Fred. I know what the word means.
I want to know what you intend when you use it.
For example, the first meaning you cite is synonymous with “agreeable.” I find the thought of a wall quite agreeable; the thought of a “green new deal” not at all agreeable. So either might be a legal exercise of Presidential authority (though I doubt it), but I’d find only one “acceptable” by the first definition.
By the second meaning, I’d have no choice but to accept whatever action is legal, up to the point where I felt the Constitution itself were being betrayed, at which point I’d call for extra-legal insurrection. I am no where near that point.
There. I’ve been more respectful than your comment deserved. Now tell me: what do you mean by “acceptable?”
Principles are principles, but it looks suspicious to me when, on one side is a complete reworking of the entire US economy enacting massive changes directly and radically affecting every single American, and approximately 200 miles of barrier on our southern border.
Why the huge disparity of examples? What’s the principal behind that, may I ask?
Ours is a messy system. The will of the President vs the will of the Congress vs the will of the People.
The Congress is split. Not just between the Senate and the House, but between where prominent members of the Democratic Party stood just five years ago and where they believe they have to position themselves today some 20-odd months away from the next election. You want to cast this as a clash of principles, but it’s a clash of politics and nothing more. Trump is for X, therefore I am for Y, or at least against X because that’s where my base wants me.
As for the executive usurping the legislative, I’d say this is a fine time to get all worked up over that now. The Congress has been ducking its Constitutional duty for some time. They have surrendered their powers to both the executive and judicial branches, mostly willingly and without a whimper. Otherwise some folks might hold them responsible or something.
What a great post! My two cents.
We are a government of laws not men. Whatever is constitutional for members of one party must be constitutional for members of the other party, and vice versa.
Let me take a brief tangent.
The recent original sin was Obama’s with DACA, a policy that I would have supported if it had been enacted. DACA stands for “Deferred Action for Childhood Arrivals.” Obama was, in my mind, authorized to say that it would be the policy of the United States to not prosecute a class of people. I mean, the DACA kids were brought here due to no fault of their own. The problem is that he expended federal funds without authorization, to issue DACA cards and to administrate the program. If memory serves, essentially no one filed suit against DACA.
Then came DAPA, “Deferred Action for Parents of Americans.” Whoa! If you were illegal you could get a free pass by getting knocked up, or knocking someone up? That is patent nonsense. A suit was promptly file. The Federal District Court for the Southern District of Texas enjoined it. The Fifth Circuit agreed. The Supreme Court tied after Scalia’s death. (The Supreme Court should have ruled against DAPA by a 8-0 vote!)
Trump was within his constitutional rights to shut down both DACA and DAPA. However Congress should have enacted DACA as a legislative matter.
Enough of my tangent.
Great post and comments.
There’s a use in using two extreme examples to illustrate a point. I often do that with abortion, to prompt consideration of the idea that a line might reasonably be drawn somewhere between the moment after conception (one extreme) and the moment before birth (another). Fred may be doing the same here.
But Fred is engaging in a classic bit of passive aggressive sophistry. He’s using words in a vague and contentious way, then dodging when you try to pin them down. It’s not a practice conducive to illuminating differences or bridging divides.
Bingo. It obviously should be done, and Trump should have done it right away when he had the most power.
Now they just want to make him look bad.
Obama put up almost 100 miles of fence.
I think you’re giving me far too much credit here, Hank. I’m not trying to dodge the question. I really don’t have a better answer to than the one I provided.
I suppose the best answer is test by trial hypothesis.
Pose the situation and then ask, “Would you consider that acceptable?”
Its similar to asking “Are you okay with this?”
And you’re, in essence, demanding I define “okay.”
A few comments.
First, I believe in my heart that Fred is acting and speaking in good faith.
Second, it feels untoward when one member of Ricochet cross-examines another member and demands an answer.
Third, it is untoward to negatively comment on someone’s personality.
Fourth, Fred suffers from Gary disease, he is a bit too pugnacious. However, that can sharpen debate.
Fifth, I really enjoy the heat of intellectual combat by Henry and Fred.
I actually have no problem with that.
Fred got me a couple of days ago. LOL
A couple of more comments.
I am always thrilled to see a post by Fred or Henry. They are well written and crafted.
I am usually thrilled to see their comments, except when their veer into sarcasm, etc.
Gary, I don’t think it’s inappropriate or excessive to ask that someone to define an ambiguous term, when it is the relevant term in the question he has posed. Fred’s response — to give me two different answers and not tell me which of them he means, is evasive and unhelpful. From someone else, I might have been more patient. But I know Fred.
So, Fred. You said:
Those two definitions don’t mean the same thing. What I consider “suitable” and what I consider “tolerable” are often two different things: I can put up with a lot I don’t like.
So pick one of them, and I will happily answer your questions.
I understand your point here. You make a compelling argument. I am really struggling to figure out where I stand on all this. I am pretty concerned that this is turning into a partisan issue. Trump is our guy so this is ok to do, but not ok if the other guy does it.
I remember a lot of conservatives being upset when Obama said things like “We can’t wait for Congress to do its job, so where they won’t act, I will.” or “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone,”
https://www.newsday.com/news/nation/obama-if-congress-won-t-act-i-will-1.3287261
https://washington.cbslocal.com/2014/01/14/obama-on-executive-actions-ive-got-a-pen-and-ive-got-a-phone/
Some of what he did got overturned in Court, some did not. It is not really the issues but the mindset. In the last administration we did not like the executive working around Congress to do things on his own. Yes it is important that the President’s actions are legal, and there is a reasonable argument that Congress has given this power to him under the National Emergency Act. I am just concerned that this is OK just because we like what he is doing and has an (R) behind his name, not because it is the best course of action.
I don’t remember what it said, but the in my highly unschooled opinion, the language of the law permits it given that the Cartels control all illegal immigration. Then throw in the fact that the tactic of dragging a kid over the border is chewing up massive resources compared to when it was mostly Mexican single men. The Cartels are using our legal system weaknesses to embed agents all over the place.
300,000 illegal entries are busted every single year. It’s money well spent.
You are a bigger man than me. Actually, it is part of my training as a lawyer. Lawyers ask questions of witnesses. If a witness asks me a question, I will quickly snap back and say that it is my job to ask questions and their job to answer my questions.
During argument to the Court, I address the Court, not the other attorney. I cannot turn and address the other attorney. At best, I can tell the Court that Attorney X did not prove his or her case, but that comment is directed to the Court.
This doesn’t really work in political debates. “I am paying for this microphone Mr. Green!” But it is how my profession does things.
I understand. I think it is almost entirely a partisan issue. That is, I think the greatest single motivation, on both sides, is the impact it has on Trump’s ability to keep a prominent campaign promise. I think that’s why it’s so important to Trump and why it’s so important to Democrats. I don’t think that’s good, but I think it’s the reality.
I can’t speak to the legality of any of this, merely to the meta-issue of my criteria: I want Presidents — all Presidents — to obey the law. I think Trump has been very good at that. I don’t think Obama was.
As for the “pen and phone” thing, I think there’s an interesting distinction between Obama and Trump. Trump has maintained all along, and probably correctly, that he had the legal right to declare a state of emergency and build the wall. In contrast, Obama repeatedly said that he didn’t have legal authority to do what he did, but then did it anyway while explaining that Congress’s failure to act had forced his hand. That isn’t an adequate legal defense.
In fact, Obama may well have had legal authority to do what he did, despite his earlier protestations to the contrary. But there’s a difference in character between a President who believes (possibly erroneously) that he has authority and who then acts on it, and a President who believes (again, possibly erroneously) that he lacks legal authority, but who then arrogates it to himself anyway. The latter (and that would be Obama) strikes me as pretty despicable.
Gary, here’s a sincere question, and something I’ve actually wondered about in the past.
What would happen in court if you asked a witness a question and the witness didn’t understand what you meant by a word you used, and asked for clarification?
I mean, if you said:
“And was that a copacetic resolution, in your opinion?”
and the witness said “what do you mean by ‘copacetic'”, what would happen? Would the judge tell him to just answer the question? Would you be compelled to either withdraw the question or clarify? How would it likely be resolved?
***W H A T?***
What are we supposed to believe in anymore?
#GovernmentIsAmeance
Government is a meance?
What the hell are you saying, Rufus? Get a grip, man!
80% of it is non-public goods. public goods only please.
The Democrats are being capricious and gratuitous with public safety so they can get more power to steal from us. Except for actual public goods, it all sucks.
Yeah, but “meance?”
#usehashtagsresponsibly
#ModernWesternGovernmentAddsNegativeValue #NetMinus
#NowThoseAreHashtagsICanGetBehind