Trump’s declaration
has been attacked as a Constitutional-level violation, a usurpation of
Congress’ exclusive right to control the amount and purpose of federal
spending. In the case of his cherished wall, it’s clear his determination to build
it contravenes the will of Congress. We know because Congress refused to
include funding for it, even when Trump stomped his feet, held his breath, and
shut down the government for 35 days. They weren’t impressed by his theatrical
temper tantrum and didn’t give him a cent. (As an aside, don’t you find it
ironic that, when Trump holds his breath, he doesn’t turn blue but red states
do?)
While Trump’s
“national emergency” stunt has inspired street protests and angry editorials,
not all pundits are aiming a fire extinguisher at their hair. For example, Ross
Douthat of the New York Times, concedes that Trump’s stunt is a Constitutional issue, but insists it “is
not itself a constitutional emergency.” He admits the precedent it would set is
troubling, but notes, “With Trump, though, the only clear precedent being set
is one of deplorable incompetence.” In other words, while Trump might seize an
unconstitutional power, he’s too stupid to use it effectively. That’s what
passes for consolation in the age of Trump.
But there is a more
immediate, profound, unsettling and potentially dangerous consequence of
Trump’s power move that Douthat – and, frankly, everybody else I’ve read on the
subject – has not addressed: the aforementioned alteration of the relationship
between the generals and the people. I’m talking about civilian control of the
military, a guiding principal of the American experiment. As the Defense Department
states on its website:
The framers of the U.S. Constitution worked to ensure the military
would be under civilian control. They did not want to emulate the European
experience. The colonies had just fought a war for freedom from Britain. The
king controlled the British military, and the framers had no interest in
duplicating that system.
Civilian control of
the military is governed by two Constitutional provisions. Article I, Section 8
gives Congress the authority to “raise and support armies” and to “provide and
maintain a navy.” Article II, Section 2 states, “The President shall be
commander in chief of the Army and Navy of the United States.” These provisions
perpetuate civilian control by giving Congress the power to fund the military
and by establishing an elected official, the President, as the
Commander-in-Chief – as opposed to a leader from entirely within the military
establishment.
These two provisions work
in concert. Both are necessary and there is some tension between the two,
especially in recent years as Congress has effectively ceded its power to
declare war to the Presidency. Article II, Section 2 standing alone would not
sufficiently guarantee civilian control and protect the American people from
military overreach. The mere fact that the commander of the armed forces is an
elected civilian does not ensure that the military will act in accordance with
the will of the people and guarantee civilian freedom. Nicolás Maduro of
Venezuela is an elected President who has lost his legitimacy because his
incompetence has led his country to the brink of starvation. Nevertheless, he
retains power because of one factor: the Venezuelan military. As long as the generals
support him, Maduro will perpetuate a presidency that has degenerated into a
tin-horn dictatorship and devastated his nation.
While Trump’s
declaration is onerous on general Constitutional principles, the way he wants
to enforce it threatens the Constitutional balance. While he will initially use
discretionary funds that do not require the national emergency declaration to
begin construction of his trophy wall, the bulk of the funding Trump is
demanding will come from military construction funds. He cannot use those funds without violating
the will of Congress – unless the courts endorse his national emergency and
allow it. If they do, they will increase presidential power to the detriment of
civilian control of the military because civilian control requires a tight hold
on the purse strings. This is a chilling reordering of Constitutional powers
under any circumstances, but even more so when the occupant of the Oval Office disdains
the law and worships despots like an aged groupie.
In America, civilian
control of the military does not only mean that a civilian is the
commander-in-chief, but that he and the military are subject to Congress’
budgetary authority. It is Congressional power that insures civilian control of
the military, not Presidential power. It is Congress that authorizes the
creation and location of military bases, the procurement of weapons systems,
and the nature and location of military construction projects. That’s leverage that
constitutes the molten core of Congressional power over the military. Trump’s
declaration threatens to upset the delicate balance between Article I and
Article II and reduce Congress’ authority over the military while expanding
presidential authority.
James Madison told
the Constitutional convention on June 29, 1787, that “A standing military
force, with an overgrown Executive will not long be safe companions to liberty.”
The federal courts, as they determine whether to allow Trump’s so-called
“national emergency,” should be guided by his words.
One of my strangest radio interviews featured a gadfly named Joe Sweeney, who died a few years ago. Sweeney repeatedly ran for office, losing nearly every election. He seemed a harmless eccentric until he declared he was a “racist” when he ran for congress in 2004. He ran as a Republican and the desperate Republican party ran a conventional candidate against him in the primary. Sweeney trounced him and the GOP was apoplectic. Not the media. Sweeney was a legitimate candidate and a Sweeney interview was a reporter’s dream. I interviewed Sweeney when I was editor of the law school newspaper and looked forward to the return engagement.
I interviewed him again in 2004 during the “Inside Track” radio show with the late Emil Franzi, the show’s founder. I asked Sweeney about his racism and he quoted Martin Luther King, Jr. (“they will not be judged by the color of their skin, but by the content of their character”). I expressed surprise that an avowed racist quoted MLK and told him, “Joe, I’ll take your word for it that you’re a racist. But I have to tell you, you’re not very good at it.”
I remember Sweeney as the media arcade pinballs the term “racism” from one speaker to another, all wondering if the American Czar is a racist and, more importantly, whether racism influences his policies. When a self-designated racist is unsure of the definition, it reminds us to use the term cautiously.
One of my strangest radio interviews featured a gadfly named Joe Sweeney, who died a few years ago. Sweeney repeatedly ran for office, losing nearly every election. He seemed a harmless eccentric until he declared he was a “racist” when he ran for congress in 2004. He ran as a Republican and the desperate Republican party ran a conventional candidate against him in the primary. Sweeney trounced him and the GOP was apoplectic. Not the media. Sweeney was a legitimate candidate and a Sweeney interview was a reporter’s dream. I interviewed Sweeney when I was editor of the law school newspaper and looked forward to the return engagement.
Liberty’s Dangerous Companions
If the federal courts endorse President Donald Trump’s attempt to circumvent the wishes of Congress by declaring a phony national emergency, they will do more than ratify a narcissist’s trophy lust. They might permanently change the relationship between the American people and their military – and not for the better.
Trump’s declaration has been attacked as a Constitutional-level violation, a usurpation of Congress’ exclusive right to control the amount and purpose of federal spending. In the case of his cherished wall, it’s clear his determination to build it contravenes the will of Congress. We know because Congress refused to include funding for it, even when Trump stomped his feet, held his breath, and shut down the government for 35 days. They weren’t impressed by his theatrical temper tantrum and didn’t give him a cent. (As an aside, don’t you find it ironic that, when Trump holds his breath, he doesn’t turn blue but red states do?)
While Trump’s “national emergency” stunt has inspired street protests and angry editorials, not all pundits are aiming a fire extinguisher at their hair. For example, Ross Douthat of the New York Times, concedes that Trump’s stunt is a Constitutional issue, but insists it “is not itself a constitutional emergency.” He admits the precedent it would set is troubling, but notes, “With Trump, though, the only clear precedent being set is one of deplorable incompetence.” In other words, while Trump might seize an unconstitutional power, he’s too stupid to use it effectively. That’s what passes for consolation in the age of Trump.
But there is a more immediate, profound, unsettling and potentially dangerous consequence of Trump’s power move that Douthat – and, frankly, everybody else I’ve read on the subject – has not addressed: the aforementioned alteration of the relationship between the generals and the people. I’m talking about civilian control of the military, a guiding principal of the American experiment. As the Defense Department states on its website:
The framers of the U.S. Constitution worked to ensure the military would be under civilian control. They did not want to emulate the European experience. The colonies had just fought a war for freedom from Britain. The king controlled the British military, and the framers had no interest in duplicating that system.
Civilian control of the military is governed by two Constitutional provisions. Article I, Section 8 gives Congress the authority to “raise and support armies” and to “provide and maintain a navy.” Article II, Section 2 states, “The President shall be commander in chief of the Army and Navy of the United States.” These provisions perpetuate civilian control by giving Congress the power to fund the military and by establishing an elected official, the President, as the Commander-in-Chief – as opposed to a leader from entirely within the military establishment.
These two provisions work in concert. Both are necessary and there is some tension between the two, especially in recent years as Congress has effectively ceded its power to declare war to the Presidency. Article II, Section 2 standing alone would not sufficiently guarantee civilian control and protect the American people from military overreach. The mere fact that the commander of the armed forces is an elected civilian does not ensure that the military will act in accordance with the will of the people and guarantee civilian freedom. Nicolás Maduro of Venezuela is an elected President who has lost his legitimacy because his incompetence has led his country to the brink of starvation. Nevertheless, he retains power because of one factor: the Venezuelan military. As long as the generals support him, Maduro will perpetuate a presidency that has degenerated into a tin-horn dictatorship and devastated his nation.
While Trump’s declaration is onerous on general Constitutional principles, the way he wants to enforce it threatens the Constitutional balance. While he will initially use discretionary funds that do not require the national emergency declaration to begin construction of his trophy wall, the bulk of the funding Trump is demanding will come from military construction funds. He cannot use those funds without violating the will of Congress – unless the courts endorse his national emergency and allow it. If they do, they will increase presidential power to the detriment of civilian control of the military because civilian control requires a tight hold on the purse strings. This is a chilling reordering of Constitutional powers under any circumstances, but even more so when the occupant of the Oval Office disdains the law and worships despots like an aged groupie.
In America, civilian control of the military does not only mean that a civilian is the commander-in-chief, but that he and the military are subject to Congress’ budgetary authority. It is Congressional power that insures civilian control of the military, not Presidential power. It is Congress that authorizes the creation and location of military bases, the procurement of weapons systems, and the nature and location of military construction projects. That’s leverage that constitutes the molten core of Congressional power over the military. Trump’s declaration threatens to upset the delicate balance between Article I and Article II and reduce Congress’ authority over the military while expanding presidential authority.
James Madison told the Constitutional convention on June 29, 1787, that “A standing military force, with an overgrown Executive will not long be safe companions to liberty.” The federal courts, as they determine whether to allow Trump’s so-called “national emergency,” should be guided by his words.
© 2019 by Mike Tully
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