Is This Whole Wall Mess Going To Get Trump Impeached-- Not Russia, The Vanity Wall?

No government shutdown today. The Senate passed the compromise bill 83-16 and then the House passed it 300-128 at night. 87 Republicans voted yes and 109 of them voted NO. 213 Dems voted yes and just 19 Democrats voted NO. The Democratic NO votes included some of the most progressive Dems (AOC, Raul Grijalva, Ayanna Pressley, Adriano Espaillat, Chuy Garcia, Rashida Tlaib, Ilhan Omar, Yvette Clarke...) as well as some of the most conservative Dems, albeit all Latino conservatives (Juan Vargas, Lou Correa, Vicente Gonzalez, Filemon Vela).

Pramila Jayapal, one of Congress' most dedicated members when it comes to immigration fairness, said she appreciates "the hard work that House Democratic conferees have done since the President’s last irresponsible shutdown held 800,000 federal workers hostage for a vanity wall to push for important Democratic priorities like a long overdue pay raise for federal workers and critical funding for the census" but... she announced she would be voting against the compromise funding bill. "I’ve worked on immigration issues for over two decades," she wrote, "and this administration’s unconscionable and inhumane treatment of immigrants is the worst I’ve ever seen. I am deeply concerned that House Democrats were blocked from imposing critical limits on Trump’s mass deportation force, leaving the door open to allow the Department of Homeland Security (DHS) to ramp up detention beyond levels approved by Congress. DHS has already taken hundreds of millions of dollars from disaster relief to waste on detention. Congress must pass a strong DHS appropriations bill to bring accountability and humanity to our detention system. Unfortunately, this bill did not accomplish this and that is why I will vote no. And now as Trump throws yet another temper tantrum and throws the country into a 'national emergency' over his vanity wall, this oversight is more important than ever. If Trump thinks he can go around Congress to build a wall or increase immigration detention and enforcement, by declaring a 'national emergency,' transferring funds or any other measure, we will hold him accountable. The only crisis at our border is the one President Trump manufactured through his inhumane policies of family separation and limiting access to asylum by turning back asylum seekers at the border. This will not stand."

And around the same time Jayapal was announcing her intention to vote NO, Elizabeth Warren-- who also voted NO-- introduced the Protecting Disaster Relief Funds Act with Bernie and several other senators. The idea is to keep Trump from stealing funds appropriated for disaster relief to build his idiotic wall. (Nydia Velázquez introduced the same bill in the House.) It explicitly prohibits Trump from diverting funds from the Department of Homeland Security, the Department of Housing and Urban Development, or the Army Corps of Engineers in recent supplemental disaster relief appropriations to build a wall.

Warren: "The Trump Administration's response to the 2017 natural disasters, which devastated communities across the United States from California to Texas to Puerto Rico, was inhumane and continues to harm communities by delaying critical funding to help the recovery. Now President Trump is threatening to use disaster relief funds to pay for a useless campaign promise-- absolutely not."

Ed Markey, another co-sponsor, added that "the federal government's disaster response in Puerto Rico was shameful to begin with, and the attempts by the Trump administration to redirect the limited recovery funding Congress provided to the island is downright disgraceful. There is absolutely no reason to use this money for an ineffective and hateful monument on the southern border. And the fact that we may have to legislate this restriction into law speaks to how desperate President Trump is to deliver on a campaign promise that he insisted is to be paid for by Mexico anyway."

Kamala Harris, also a co-sponsor, has to be especially worried about Trump's plans to steal money from California fire relief but her main point is that Trump can't just "go around Congress to fund his ridiculous vanity project. I'm proud to introduce this bill today to ensure that funds intended for victims of natural disasters do not go towards a wall that Congress won't fund and people on the border don't even want. This bill will stand up for Congress' power of the purse and help California families affected by recent natural disasters begin the process of recovery."

Elizabeth Warren's office explains that "Trump reportedly instructed his administration, in September 2018, to avoid disbursing disaster-recovery funds to Puerto Rico. The Trump administration shutdown in December 2018 and January 2019 unnecessarily delayed the disbursement of funds to Puerto Rico, the U.S. Virgin Islands, Florida, Georgia, California, and Missouri for over a month. Last week, the President came out against increasing nutritional assistance funding for Puerto Rico. And in recent days, the President has indicated that he plans to divert Puerto Rico disaster funding to build his border wall."

But it wasn't just Democrats dissatisfied with the way Trump is handling this. Burgess Everett reported at Politico that his threat to declare a national emergency was unwelcome by Republicans. He reported that the news, delivered for Trump by McConnell on the Senate floor, "blindsided some Republicans, confused others and sent the Senate GOP into a general state of shock." For weeks, Republicans had been warning Trump not to do it. He doesn't care. GOP staffers "privately predicted Trump will lose a vote on the Senate floor once the Democratic House passes a resolution of disapproval to block the move." That would be a slap in the face to the now officially-obese Trump.

“I wish he wouldn’t have done it,” said Sen. Chuck Grassley (R-IA), who McConnell interrupted on the Senate floor to make his announcement. “If [Trump] figures that Congress didn’t do enough and he’s got to do it, then I imagine we’ll find out whether he’s got the authority to do it by the courts.”

“In general, I’m not for running the government by emergency, nor spending money. The Constitution's pretty clear: spending originates and is directed by Congress,” said Sen. Rand Paul (R-KY), who like almost everyone else on Capitol Hill wants more information. “So I’m not really for it.”

Republicans that have previously panned the idea as setting a bad precedent for future presidents were careful in how they answered questions in the immediate aftermath of the president’s decision.

Another Politico writer, Matt Latimer, a former speechwriter for George W. Bush, warned the GOP they may be sorry if they let Trump get away with this: Trump’s National Emergency Is Great News for Future President Alexandria Ocasio-Cortez. He wrote that he hopes "Trump and his short-sighted supporters have been enjoying the fun they’ve had at the Green New Deal’s expense. Unfortunately for them, the president’s plan to declare a national emergency, which the White House announced Thursday and which could allow Trump to build his wall without congressional approval, may have just made a Green New Deal inevitable in 2021-- or whenever he’s out of the White House.

The notion that a president of the United States can simply circumvent the national legislature out of pique, declare something that has been going on for years as an “emergency,” and then implement policies our elected representatives did not vote for, allocate money for or in any other way authorize is totally antithetical to representative democracy and the checks and balances system. If Trump is correct constitutionally, which he isn’t, then what did the Founders create a Congress for in the first place? I’d like to think that the Supreme Court will call a stop to this nonsense in a 9-0 decision, as they did in 1974 when they forced the executive branch to turn over to Congress tapes of President Richard Nixon’s private conversations. Unfortunately, I’ve lost so much faith in conservatives’ ability to draw any red line against Trump that I find it easy to believe that the conservative majority of the court will go along with this, anyway. As a result, Congress will no longer matter. As a result, the Supreme Court will no longer matter, either.

You would think that a president of the United States would care about the long-term threats his actions might have on our democracy. But obviously Trump-- a man who reportedly said that amassing more crippling debt doesn’t matter because he’ll be out of office when we have to deal with it-- doesn’t care about any of this. Obviously, the Republican Congress is too scared of their own voters to care about that. But here’s what they should care about: They are making their most vivid, frenzied nightmare come true.

For a decade now, the right has warned about a progressive “dictator” like Barack Obama or Hillary Clinton forcing the United States to pursue policies that the majority does not want. Now they are making it so much easier for the next Democratic president to do exactly that. Shortly after learning of Trump’s decision to declare a national emergency to build his beloved border wall, Speaker of the House Nancy Pelosi said a left-wing president might just as well declare an emergency to impose any policies they want, too. As Elizabeth Warren tweeted: “Gun violence is an emergency. Climate change is an emergency. Our country's opioid epidemic is an emergency.” You see where this is headed.

Noah Feldman, author, Harvard Law professor and formerly a clerk to Supreme Court Justice David Souter, wrote an OpEd for Bloomberg News that whoever has been giving Trump his legal advise is not going to want to read. There's an obvious difference between "a Trump emergency" and an actual national emergency. "I know of no law that says the president can spend money on purposes that Congress doesn’t want him to spend it on, wrote Feldman... There’s no escape clause in the Constitution that lets him defy Congress. [Trump is just] "wrong. The U.S. Constitution doesn’t contain any national emergency provision that would allow the president to spend money for purposes not allocated by Congress. And it’s clearer than clear that Congress not only hasn’t authorized money for a wall along the border with Mexico but also doesn’t intend to do so. The upshot is that any attempt by Trump to get around Congress by using invented emergency powers would violate the Constitution. It almost certainly would be blocked by the courts. And it would constitute a high crime and misdemeanor qualifying him for impeachment."

And speaking of impeachment, after voting late last night, Ted Lieu told me that "Trump's proposed Declaration of a National Emergency is an authoritarian power grab that will be struck down in the courts. The Constitution gives the House of Representatives the 'Power of the Purse', and Trump cannot override the Constitution with a fake declaration. There is no national emergency. Based on the Trump Administration's own data, border apprehensions are down 75% from 2000 to 2018; both violent and property crime are down across the US; and 80% to 90% of illegal drugs come through legal checkpoints. In addition, Trump appears to seek to redirect funds from helps disaster prone areas in California and military construction that helps military families. Hurting disaster victims and military families to build a medieval wall is not the dumbest idea ever, but it comes pretty close."

Impeach Trump? by Agitprop.us

Feldman urges Lieu and his colleagues on the House Judiciary Committee-- and Pelosi, who will make the decision herself-- that "In the end, it should be simple: The separation of powers bars the president from making an expenditure on his own that Congress has refused to authorize. There’s no escape clause in the Constitution. If Trump defies the Constitution, he’s defying the rule of law itself. The courts should stop him, protecting the separation of powers. And Congress should start thinking seriously about exercising its power to enforce the Constitution against a president who openly violates it-- the power of impeachment."

1- Famously, it doesn’t expressly say who gets to do the suspending: Congress or the president. This became the basis for a constitutional dispute between Abraham Lincoln and then-Chief Justice Roger Taney when Lincoln unilaterally suspended habeas corpus at the start of the Civil War.

2- The legislative history is usefully summarized in this report by the Congressional Research Service.

3- This scholarly article by Louis Fisher, an expert on presidential spending, provides examples of discretionary spending by presidents. The article doesn't give any examples of the president spending discretionary funds on a purpose that Congress has expressly refused to fund.