Bright Lights

President Trump’s emergency declaration poses a grave threat to the institutional integrity of our constitutional democracy.

Hannah Arendt argued that the three great threats to the American Constitution and the American concept of divided power are, first, the rise of centralized power that subverts the power of the states; second, the rise of an “invisible government” of bureaucrats and agencies that withdraws democratic power from the people; and third, the disproportionate growth of presidential power that withdraws power further from the people’s legislative representatives. What all three of these dangers have in common is the disempowerment of the popular institutions answerable to the people.

Bright lines are rare in politics. The colors of the rainbow, as Herman Melville once wrote, bleed into one another, so that it is hard to tell where one color ends and the other begins. We might say the same about democracy and demagoguery. A democracy gives to the people the power to rule and a demagogue claims to rule in the name of the people. Democracies can be demagogic and demagogues are frequently democratically popular. And yet, in a Constitutional democracy, there are rules and institutions that limit the demagogue and define democracy; a constitutional democracy is a limited and moderate form of rule by the people.

In the United States, there is no more important Constitutional principle than the division, separation, and multiplication of powers. Our Constitution is too often misunderstood as a document that limits power. If it were only a piece of paper limiting what democratic majorities can do, it would never have lasted so long and come to be so worshipped. As limits on power, constitutions are paper tigers.

Hannah Arendt argues that the great innovation of the U.S. Constitution is that it limits the rise of absolute and tyrannical power by multiplying and expanding democratic powers. Our Constitution created and institutionalized multiple and contradictory powers that could and would contest and limit one another. It is based on the principle that only power checks power, and thus it decentralizes power. On the national level, the executive, legislative, and judicial powers are separate but equal; what limits one branch are the institutional powers of the others. And each institution jealously guards its power.

What is more, the states, counties, and cities across the country also retain power and can contest the power of the national state. If the powers of one state are too great, others can form to oppose it. If the powers of the national government are deemed tyrannical, states can dissent and mobilize democratically powerful forces against the central government. The true force of the United States Constitution is found in these empowered and opposed institutions.

Arendt saw the division of powers — both amongst the three branches of the national government and amongst the states and counties — as a uniquely American contribution to the theory and practice of democratic government. She calls the constitutional division of democratic power “the new American experience and the new American concept of power.” The American concept of dividing and multiplying powers is based on the fundamental insight — first articulated by Montesquieu and fully embraced by John Adams — that only power wielded by people acting in concert with others can oppose power; if we are to protect ourselves from the rise of absolute government, the only sure path is the jealous and determined preservation of multiple and opposing sources of institutional and democratic power.

One of the most exciting trends in recent American politics is the resurrection of local democratic politics. First with the Tea Party and more recently with the anti-Trump resistance, Americans have breathed new life into nearly moribund local and state governing structures to resist and oppose what they say as overreach by the central government. The new federalism of the recent decades is grassroots, local, and powerful, and it is very much in line with our constitutional democratic traditions.

The revival of our federalist tradition of local government is now inspiring another moribund democratic institution: the Congress. This past week 59 United States Senators voted to block President Trump’s National Emergency declaration that would allow him to access billions of dollars for a border wall that the Congress has refused to fund. At least 12 of those 59 Senators, Republicans all, at least say that they agree with the President that there is an emergency at the border and they mostly support his desire to build a wall. But these Senators also know that the President’s emergency declaration is a direct attack on the separation, division, and multiplication of power that is the foundation of our Constitutional democracy. It is heartening, therefore, that majorities in both houses of Congress voted to deny the President’s power grab.

But it is terrifying that neither in the House nor in the Senate are there enough votes to override a threatened Presidential veto. Forty-one United States Senators voted to allow the President to use the declaration of an emergency power as an excuse to take from Congress its most fundamental institutional power: the power of the purse. Article One of the Constitution gives to Congress “All legislative Powers,” and the exclusive power to raise revenue make laws. It is well established that this power of the legislature has been and is a potential brake on the power of the President. At a time of rising of Presidential power and, its corollary, declining legislative power, the power of the Congress to make laws and appropriate funds is one of the last and most essential limitations to increasingly absolute Presidential power.

A few weeks ago, Republican Senator from North Carolina Thom Tillis, recognized the imperative that the Congress protect its institutional power. Tillis wrote:

“Although Trump certainly has legitimate grievances over congressional Democrats’ obstruction of border-security funding, his national emergency declaration on Feb. 15 was not the right answer.
From the perspective of the chief executive, I can understand why the president would assert his powers with the emergency declaration to implement his policy agenda. After all, nearly every president in the modern era has similarly pushed the boundaries of presidential power, many with the helping hand of Congress.
In fact, if I were the leader of the Constitution’s Article II branch, I would probably declare an emergency and use all the tools at my disposal as well. But I am not. I am a member of the Senate, and I have grave concerns when our institution looks the other way at the expense of weakening Congress’s power.
It is my responsibility to be a steward of the Article I branch, to preserve the separation of powers and to curb the kind of executive overreach that Congress has allowed to fester for the better part of the past century. I stood by that principle during the Obama administration, and I stand by it now.
Conservatives rightfully cried foul when President Barack Obama used executive action to completely bypass Congress and unilaterally provide deferred action to undocumented adults who had knowingly violated the nation’s immigration laws. Some prominent Republicans went so far as to proclaim that Obama was acting more like an “emperor” or “king” than a president.
There is no intellectual honesty in now turning around and arguing that there’s an imaginary asterisk attached to executive overreach — that it’s acceptable for my party but not thy party.”

In a craven and cowardly act, Tillis flipped his position for political reasons. And he is not the only Republican Senator and Congressperson who has succumbed to political threats from the President.

President Trump will Veto this bill. Unless more Congressmen and Congresswomen take up their Constitutional duties and protect their institutional power as legislators, we will have crossed a line that is at the heart of our constitutional democratic tradition.

Jeffrey Tulis has written — in Volume Two of HA: The Journal of the Hannah Arendt Center — that the “core pathology of national politics today is congressional abdication.” In the 19th century, one of three Supreme Court nominees was turned down; today, Congressional nominations are largely rubber stamps. The Congress has also increasingly abdicated its power to declare and fund wars. The last real power Congress has is the power of budgeting and spending money. If Congress refuses to override the coming veto and defend its legislative powers, we will be witnessing the final death throes of the great history of the United States Congress and with it our Constitution.

As sad and cowardly as the Congress’ abdication of its constitutional power is, there is, thankfully, a third branch of government that will have the opportunity to uphold the Constitution’s principle of the separation of powers. As Cindy Cohn and Shahid Buttar write, the Supreme Court has acted in the past to restrain Presidential takings of legislative power.

“Justice Jackson’s concurring opinion in Youngstown set forth the analytical framework that has come to define this area of law. It explains that executive power stands at its lowest ebb when confronting an explicit act of Congress denying the purported authority, as President Truman did when attempting to seize steel mills. In contrast, executive power attains maximal reach when authorized (either explicitly or by implication) by Congress, such as when Congress has authorized military action. In between, the executive branch has flexible authority within a “zone of twilight” on issues that Congress has not addressed.
Flash forward to today. Congress has not appropriated funds to build the wall requested by the President. Given that Congress is the branch of government with the exclusive power to tax and spend, the most obvious way to characterize this refusal is as a rejection of the President’s request — placing the President at his “lowest ebb” of power under the Youngstown analysis.
Alternatively, Congress’ silence could be read to indicate that it hasn’t addressed the issue. Congress regularly grants the President an annual sum of funding for “discretionary” spending purposes, from which the administration could claim funds have already been provided and that his acts fall within the “zone of twilight.” On the other hand, funds provided in discretionary budgets are designed to fill budgetary gaps of federal agencies in their regular operations. Construing congressional silence as assent would therefore require a stretch.
The choice between these two possibilities will likely be the crux of any legal challenge to the President’s attempt to direct funds absent congressional appropriation. Because Congress exclusively wields the power to appropriate funds and declined to do so here, the courts should overturn any unilateral executive branch action, as they did in Youngstown.”

Jeffrey Tulis argues that the Supreme Court made the wrong decision in Youngstown. This is because when President Truman made the extraordinary decision to take over the steel mills, he sent a letter to Congress that read:

“I know this action is unprecedented; it does require your authorization. But the circumstances of war impel to seize the steel mills. Here are my reasons, but I will follow your guidance, your legislative judgment. You need to either ratify what I do democratically, or you need to suggest something to do instead, or you need to countermand my decision. Whatever you decide, I’ll follow.”

Truman’s letter received no response from Congress. For Tulis, this was a justification for President Truman to act.

But President Trump is no President Truman. The President sent no such letter to Congress. What is more, in a hopeful sign, Congress did act democratically to countermand the President’s decision. That the President has contempt for constitutional limitations and democratic action and will veto this congressional action should not hide the fact that this is a far more naked and unconstitutional grab of congressional power by the President than was Truman’s seizure of the steel mills.

We are now in the first real Constitutional crisis of the Trump presidency. One can only hope that the revival of democratic power we are witnessing in Congress will prevail, whether in Congress itself, or in the Supreme Court. The vitality and future of the what Arendt called the American concept of power rests on congressional and judicial willingness to take up the powers they have and check executive power.

Roger Berkowitz, Founder and Academic Director, Hannah Arendt Center for Politics and the Humanities, Bard College