In a Rose Garden speech Friday morning announcing that he was declaring a national state of emergency to respond to an “invasion” at the southern border, the president invoked his usual fondue of imaginary statistics (“I get my numbers from a lot of sources”) that are belied by the numbers from his own Justice Department and most experts to conjure a crisis. He cited as statistical authority the strongly held feelings of some people—Angel Moms and the “crowd in El Paso”—who assure him that Wall makes them safer than Not Wall. He was also exquisitely clear on what should be a material legal point: that this is not, in fact, a national emergency: “I didn’t need to do this … I just want to get it done faster, that’s all.” This, after months of inaction and years of a Republican-controlled Congress and a 10 a.m. announcement time that became a 10:37 a.m. announcement time that will be followed by 4 p.m.
departure for a golf weekend at Mar-a-Lago.
Legal scholars have done superb work laying out the complicated interplay between the National Emergencies Act of 1976 and the 1952 Supreme Court ruling in Youngstown Sheet & Tube Co. v. Sawyer. Justice Jackson, writing in a landmark concurrence in Youngstown, established three categories of presidential power: one in which the president acts pursuant to both his Article II authority and the authority granted by Congress; the next, a “zone of twilight” in which the president acts while Congress remains silent; and the third, which he deemed the “lowest ebb” of presidential authority, where the president acts over the objections of Congress. The Emergencies Act, however, is broad and vague. Noah Feldman says declaring an emergency when none exists is clearly unconstitutional. Elizabeth Goitein argues that the courts may give Trump the green light under the broad statutory authority of the National Emergencies Act. David French says the declaration is illegal. The truth is, of course, that what legal experts and academics think is much less relevant than what actual judges will do. And the president was absolutely clear in his announcement that he has that part in the bag.
Having conceded that he’s only declaring an emergency because he “wanted to get it done faster,” Trump assured the crowd assembled in the Rose Garden that “I’ll sign the final papers as soon as I get into the Oval Office, and we will have a national emergency. We will then be sued and they will sue us in the 9th Circuit, even though it shouldn’t be there. We will possibly get a bad ruling, we’ll get another bad ruling, and we’ll end up in the Supreme Court, and hopefully we’ll get a fair shake and we’ll win in the Supreme Court. Just like they did on the ban, and we lost and we went to the Supreme Court and we won.”
In case it wasn’t clear that the president believes the entire 9th Circuit Court of Appeals is not a legitimate court, he expanded on that last point:
It was very interesting because yesterday, they were talking about the [Muslim] ban. We have a ban, it’s very helpful, Madam Secretary, is that right? Without the ban, we’d have a bigger problem. We have a ban on certain areas, certain countries depending on what’s going on in the world. We won. But somebody said President Trump lost on the ban. Well, he was right, I lost at the lower court. He didn’t say that we ultimately won at the United States Supreme Court, they didn’t want to say that. They didn’t want to go that far. They were saying how I lost, the person sitting right up here. Donald Trump lost on the ban. Yeah, I did. And then I lost a second time. You should have said that too. And then it went to the Supreme Court and I won. Didn’t want to take it that far. But we won on the ban and we won on other things, too. The probably easiest one to win is on declaring a national emergency because we’re declaring it for virtual invasion purposes. Drugs, traffickers, and gangs.
It’s not clear who that “somebody” was who said that thing about the ban, but it almost doesn’t matter. What matters is that in the president’s head, a fake court will enjoin his national emergency and a fake appellate court will uphold that injunction, and then the real court will “hopefully” give him a win. The facts don’t matter to him (remember his stats) and the law doesn’t matter to him. What matters is his judges, and his justices, and the buck stops there—everything else that happened this morning was just a desperately sad puppet show.
Last summer, when the Supreme Court was considering the Muslim ban, five justices looked past Trump’s campaign statements and the tweets and the winking comments and found that the president had the legal authority to enact it. In dissent, Justice Sonia Sotomayor was furious at this willful blindness: “Rather than defend the President’s problematic statements, the Government urges this Court to set them aside and defer to the President on issues related to immigration and national security. The majority accepts that invitation and incorrectly applies a watered-down legal standard in an effort to short circuit plaintiffs’ Establishment Clause claim.” Her final sentence in that dissent is today’s chilling reminder of what happens when the Supreme Court rubber-stamps a pretextual power grab by a president who has no respect for the Constitution: “Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.”
Last week, the Senate Judiciary Committee mashed a record-smashing 44 Trump-nominated judges through committee for a vote. As California Sen. Kamala Harris noted at that hearing, those 44 judges alone, if confirmed, will make up one-twentieth of all lifetime-appointed federal judges in the country. Trump’s building his team and he’s not wrong when he says this is all that matters. Over 80 percent of Trump’s appellate judicial nominees have come from the Federalist Society, even though fewer than 4 percent of all American lawyers are Federalist Society members.*
Donald Trump’s emergency declaration isn’t popular and isn’t necessary and—as he admitted himself this morning—isn’t even an emergency. His one play, his only play, is his confidence that the smash-and-grab appointment of federal judges he has spearheaded will remain popular with Republican senators. His constitutional violation may prove unpopular and even unconstitutional, but it doesn’t matter if his judges will someday bless it. The president just announced—and announced out loud, on television—that he would flout the will of Congress and win at the Supreme Court because the justices there let him do what he wants. He’s so confident of that fact he doesn’t even bother to sell his “emergency” beyond vague bleating about rapists and taped mouths and invasions and “Nancy is a liar.”
In 2005, an esteemed judge wrote, “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education. This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. … At the same time, the politicization of the judiciary undermines the only real asset it has—its independence. Judges come to be seen as politicians and their confirmations become just another avenue of political warfare. Respect for the role of judges and the legitimacy of the judiciary branch as a whole diminishes.”
The author was Neil Gorsuch, who, at least according to the president’s current calculus, is one of five guys who’s about to let the commander in chief steal home, just because they are on the same team.
Last year, the Supreme Court caved under the gibberish Trump offered up to paper over his racist Muslim ban. Anthony Kennedy went so far as to essentially claim that there was nothing the court could do about Trump’s lawlessness and that, given that, the president should maybe try to cut it out. That was right before Kennedy ghosted. The integrity and authority of the judicial branch is eroded every single time Donald Trump puts an unfit jurist on the bench. It’s further eroded when he announces that an entire federal circuit is corrupt and biased. But when he stands and promises that he has the current Supreme Court in his pocket, so nothing really matters, that might be the greatest threat to the legitimacy of the judiciary, period. And if that high court ultimately stands by and rubber-stamps his fake data and tawdry impresario “invasion” porn, the real national emergency will be at the court, not the border.
Correction, Feb. 19, 2019: This piece originally misstated that 80 percent of Trump’s judicial nominees come from the Federalist Society. In actuality, over 80 percent of Trump’s appellate judicial nominees come from the Federalist Society.