Happy National Emergency Day

word meaning

Will the courts—and, in particular, the Supreme Court—uphold Trump’s purported use of his powers under the National Emergencies Act of 1976? Like many legal questions, the issue is, at one and the same time, both complex and simple. And, if you wish to gain a basic understanding of the relevant legal reasoning—as opposed to emoting and bloviating about it—then you need to grasp both the complexity and the simplicity of the matter.

Here, the complexities involve constitutional law, identification of all the relevant statutes, interpretation of the pertinent statutes (including a fair amount of case law), and a lot of theological reasoning about who would, and who would not, have “standing” to appear in court as a plaintiff to challenge Trump’s actions. For a quick summary, I recommend yesterday’s post from the Journal of the American Bar Association, Can Trump legally use emergency powers to build a border wall? Experts weigh in.

My sense is that the good folks at the ABA Journal have gone a little bit out of their way to find Trump-friendly legal experts to pontificate on all these legal complexities. But, if you actually want to understand a legal issue, then you need to begin by wrapping your mind around your adversary’s best arguments (or his least bad arguments, as the case may be).

Now for the fundamental, simple issues.

The Humpty Dumpty Rule of Statutory Interpretation

In 1976, Congress made a considered decision not to include language defining “emergency” in the National Emergencies Act. Trump appears to reason that Congress thus made him a presidential Humpty Dumpty, with the power to define the term any way he wants to define the term.

Trump did not go to law school. If he had done so, then he would have learned that if you want to know what a word in a statute means, then—absent a specific statutory definition—you look to the dictionary, and then you consider what the dictionary says in light of public policy. In other words, your legal analysis must be informed by an understanding of what problem Congress thought it was addressing when it enacted the statute.

Merriam-Webster says “emergency” means “an unforeseen combination of circumstances or the resulting state that calls for immediate action” or “an urgent need for assistance or relief.”

In context, the argument is that a national emergency justifying extraordinary presidential action means a situation demanding immediate action, that Congress did not foresee and provide for, or that Congress does not have time to consider and provide for.

A Rational Relation Between the Perceived Emergency and the Presidential Action

Reports this morning are that Trump intends to divert $2.5 billion from current drug interdiction problems, in order to build a wall that will not stop drugs from entering the country.

Does the President not only possess Humpty-Dumpty-like powers to define words, but also the power to act irrationally in addressing the perceived problem that he chooses to call a “national emergency”? That would be surprising.

The Legal Significance of Congressional Consideration and Action

Here, the country has debated, and Congress has considered. the question of a border wall at great length. Having duly considered the matter, both houses of Congress have enacted legislation addressing the topic.

Even if the President might be deemed to possess the powers of Humpty Dumpty in other circumstances, does his power extend to a situation where Congress has fully considered and resolved the matter, and he is unhappy with the result?

Trump Loyalty Versus Logic, Precedent, and Public Policy

A Trump loyalist would find a way to rule for Trump. But that would create a precedent for a fundamental change in our constitutional order.

I have no idea what Alito, Gorsuch, Kavanaugh, and Thomas will say on this topic. I do not believe that John Roberts will render a decision favoring the Cult of Trump.

Be we shall see what we shall see.

Legal Sabotage, Anyone?

And one more thing.

It will also be interesting to see how our new attorney general will handle the matter. Perhaps he, too, has joined the Cult of Trump. But, as I have said before, I doubt it.

One option for him in supervising the legal defense of the national emergency declaration would be to ensure that the legal briefs supporting Trump are so badly written as to sabotage the case. And, by the way, that could easily be done by employing language that Trump himself would love!

We shall see what we shall see.

Torn

With new border deal, Republicans are trying to negotiate Trump’s surrender

Trump pans spending deal as shutdown deadline approaches: GOP leaders are urging Trump to back the agreement, even though it falls short of his wall demands.

On the one hand, I know another shutdown would be terrible.

On the other hand, I struggle to restrain myself encouraging him to shut it down again, by pretend begging:

Pretty please, o pretty please with sugar on top, o President Tiny Hands, please, please don’t shut down the government again!

briar patch

 

Peter Wehner Had an Epiphany

epiphany

But First a Word about the State of the Union Speech

In the end, Dr. Aardvark and I could not bring ourselves to watch it. Instead, we watched the last episode of Rebecka Martinsson on Acorn TV. (Was Krister killed by the gunshot, or did he survive and recover? The evidence seems ambiguous. Can anyone tell us? Will we have to wait for Series 2? Will there, in fact, be a Series 2?)

As for SOTU, according to reports, it was as expected. I could have written it for Trump in my sleep. And so could you.

We did watch Stacey, and liked her style and her substance.

And Now for Peter Wahner’s Epiphany

Before Happy Acres, my regular driving route took me past a  house of worship called The Church of the Epiphany. Each time I passed, I would strike my forehead and utter, “I couldda had a V8!”

Based on his recent article in the Atlantic, something similar has happened to Peter Wehner. In case you don’t know, Peter Wehner is an anti-Trump rightwing think tank kind of guy. He has now decided to leave the Republican Party, or so we may glean from today’s early morning post, What I’ve Gained by Leaving the Republican Party: I’m more willing to listen to those I once thought didn’t have much to teach me. According to Mr. Wehner’s fulsome, thumb sucking self-analysis, his exit from the party has provided the occasion for considerable personal growth and maturation:

I assumed that the claim that the Republican Party’s effort to win the South’s support in the late 1960s was part of a “southern strategy” relying on a coded racial appeal was unjust. Enforcing law and order is certainly a legitimate issue for politicians to run on, and a basic function of government.

Today I see the Republican Party through the clarifying prism of Donald Trump, who consistently appealed to the ugliest instincts and attitudes of the GOP base—in 2011, when he entered the political stage by promoting a racist conspiracy theory, and in 2016, when he won the GOP nomination. He’s done the same time and time again during his presidency—his attacks on the intelligence of black politicians, black journalists, and black athletes; his response to the deadly violence in Charlottesville, Virginia; and his closing argument during the midterm elections, when he retweeted a racist ad that even Fox News would not run.

It would be deeply unfair to claim that most Republicans are bigots. But it is fair to say that most Republicans today are willing to tolerate without dissent, and in many cases enthusiastically support, a man whose appeal is based in large part on stoking racial and ethnic resentments, on attacking “the other.” That has to be taken into account. At a minimum, their moral reflexes have been badly dulled.

It’s impossible for me to know with any precision how much of the Republican base is motivated by ethnic nationalism and racial resentments and anxieties, but it’s certainly a higher percentage than I’d thought. A conservative friend of mine recently had a meal with a prominent Republican officeholder who, when asked what explained Trump’s growing appeal in his state, told my friend it was in reaction to Obama and it was mainly a matter of race.

We welcome Mr. Wehner’s new insights and wish him well in his struggles for continued personal and intellectual growth.

Arma Faecesque Cano

Eugene Robinson has a Pulitzer prize and a prestigious job writing punditry, and I have neither. But I think both of us are facing a similar problem: our respective muses are running dry.

In The scariest thing about Trump’s tweets, Robinson first sentence poses a rhetorical question that gets right to the point: “Of all the crackpots on social media, is any more untethered to reality than the president of the United States?”

Trump is amoral, cruel, and lacking in human empathy, but these characteristics are often found in people at the top of the heap.

He is a bully, but so are many Fortune 500 CEOs.

He is a hypocrite, but so are many politicians.

And, may I say, many people—especially those with power and authority—do not hesitate to sling the shit from time to time.

What truly sets Trump apart from the common herd is that everything, without exception, that he says is bullshit.

And that that slinging the shit is his ONLY tool for mastering a situation, asserting dominance, and getting his way.

To pick a random comparison, think of Lyndon Johnson or Bill Clinton. Yes, they would bullshit from time to time. But they had additional arrows in their quiver. Additional tools in their toolkit.

Two thousand five hundred years ago, in The Boy Who Cried Wolf, Aesop identified the fatal flaw in a life strategy based on serial mendacity. Today, Trump is the poster child for that life lesson.

Fear of Trump is rapidly dissipating. No one believes him. Those who pretend to believe him face the grave risk of losing what little shred is left of their reputation.

What more is there to say?

So High You Can’t Get Over It, So Low You Can’t Get Under It, So Wide You Can’t Get Around It

Today, Jennifer Rubin tells us that we’re Learning to Ignore Trump. I think she’s about right.

So keep your blood pressure low this afternoon, and enjoy the twitterings below and the ironically chosen music above.

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