A Constitutional Crisis: Bring It On!

We live in interesting times.  We may, in fact, be at a place our nation has never been before.  With the government in gridlock and the two major parties glowering at each other as if they were mortal enemies, few claim to know the way forward.  Witness Nancy Pelosi’s instant rejection of Trump’s latest compromise offer.

Since the beginning of the Trump administration, there have been rumblings about a constitutional crisis.  For the most part, these have been efforts to embarrass the president into changing his policies.  Now, however, we may be at a point when there is a real crisis.

With Donald Trump still threatening to declare a national emergency so that he can fund a border wall and Democrats refusing to spend a penny on such a barrier, no movement is in sight.  Even though a paltry three billion dollars separates them, intransigence rules the day.

So I say that Trump should declare an emergency.  Despite decades of on-and-off efforts, our southern frontier is more porous than ever.  What is more, despite declarations to the contrary, it is clear that liberals favor open borders.  As Gavin Newsom, the governor of California, announced, he wants his state open to all who request sanctuary.

This kind of extremism can only be stopped by counter-action.  At some point, Trump will have to enforce a red line.  Some say that if he takes an unparalleled step to build his wall, this will set a precedent he will regret.  It will be an invitation for Democrats to do the same when they regain power.

In actual fact, the left needs no invitation.  Barack Obama already demonstrated his willingness to use executive action irrespective congressional wishes.  No doubt other progressives would be tempted to resort to a Harry Reid-style nuclear option if their programs get stymied.  They are thus perfectly capable of serving as their own role models.

Furthermore, the Democratic effort to paralyze the Trump administration is itself unparalleled.  It too sets a destructive precedent.  No democratic government can survive if compromise is ruled out of bounds.  None can function if the opposition party is allowed to prevent any executive action whatsoever.

As a result, Trump cannot operate as president if he does not rise to this challenge.  His opponents say that if he does, he can never get reelected.  What they overlook is that if he does not, Republicans will never renominate him.  Instead of being perceived as strong, he will be regarded as a wimp.

In any event, if he does move forward, he is sure to face a judicial challenge.  The Democrats will do their usual judge shopping and find someone willing to declare the emergency unconstitutional.  What comes next will be telling.

If this magistrate calls an immediate halt to building the wall, the president’s next move must be as decisive.  Remember, challenges to Obama’s DACA initiative were also ruled unconstitutional, but allowed to proceed to the Supreme Court before being dismantled.

That a single low-level judge would be allowed to set policy for the nation should be intolerable.  As a consequence, Trump must ignore such a ruling and continue the building process. Plainly he has as much right to decide on what is constitutional as some activist jurist from Podunk.

Here then would be a genuine constitutional crisis.  The fat would be in the fire and the resulting explosions would be nationwide.  My guess is that most politicians—and indeed, most Americans—do not what to go there. They can live with verbal outbursts, but shy away from volatile impasses.

Nonetheless, it may be time for an authentic crisis.  Oftentimes, it is only at such moments that logjams are broken.  A little dynamite in the right place can get pieces moving after they become stuck. Likewise, sometimes this is the only way to shake human beings out of an ideological trance.

I do not recommend this lightly.  Whenever we enter unexplored territory, we cannot be certain of the outcome. Even so, we are currently in a state of emergency.  I am not talking about the southern border.  It is our moral crisis to which I allude.

In the past, with the exception of the Civil War, most Americans have understood that working together requires making adjustments.  However, with both liberalism and conservatism unable to deliver on their promises, both sides have doubled down on blockheaded stubbornness.

Sometimes, the only way to get a mule’s attention is to hit it over the head with a two-by-four.  I am suggesting that it is time for the two-by-four.

Melvyn L. Fein, Ph.D.

Professor Emeritus

Kennesaw State University