- The Washington Times
Monday, January 28, 2019


Florida Sen. Little Marco took a step closer to becoming the Republicans’ Nancy Pelosi when he aimed a stream of water on President Trump’s possible use of his emergency powers to get that $5.7 billion border thing built.

“I think it would be a terrible idea — I hope he doesn’t do it,” Marco Rubio said Sunday as an amazed “Meet the Press” audience watched the one-time tea party idol actually shrink himself a little more.

It’s not that Mr. Rubio is all wrong all the time. A decade or so ago, many of us who based our conservatism on devotion to the Constitution would have bridled at further enhancing the imperial presidency’s power.

No way would we have considered, for example, removing the minority party’s right to filibuster in the Senate. The “nuclear option” would have been a non-starter.

Grabbing the big gun of presidential emergency powers to blow a hole in the congressional blockade of vertical border protection is in a way bigger than erasing the curlicue the founders added to the checks side of checks and balances.

That bewigged and knickered gathering 231 years ago came up with the endless filibuster to keep at bay an overwrought majority.

It wasn’t until 1917 that the Senate allowed debate to be cut off at all, but provided the majority party increase its Senate numbers in the next election to a filibuster-ending two-thirds majority. And thus to work its will on a particular issue.

So, yeah, it’s not patriotic propaganda but pretty much fact that the unruly tangle of lawyers, farmers, physicians and businessmen assembled in Philly anticipated just about everything that could screw up their new republic.

Buried somewhere in the Mt. McKinley of federal law (along with the mountain’s name change to “Denali”) is Section 2808, Title 10, which first saw the light of day in the Clinton presidency.

It authorized the president to declare a national emergency and, through his secretary of defense, order that money Congress already had allocated for other construction to be used for the emergency purposes the chief executive or the defense secretary designates.

The U.S. Border Patrol nabbed nearly 400,000 Mexico-U.S. border jumpers in fiscal 2018, up about 100,000 from the year before.

Does that constitute a national-defense emergency requiring the erection of that border thing? Or would claiming that the increase justifies invoking emergency powers constitute an abuse of executive power?

“From a political perspective, Trump has no other option since Pelosi is committed to defeating any funding to expand the wall,” says Dan Schneider, American Conservative Union executive director. “The implications of using executive authority to do this are almost irrelevant.”

Why “almost irrelevant”?

“The left needs no permission to usurp authority from the people or any other level of government,” Mr. Schneider says.

Well, yes, but not just the left – by which he means the Democrats.

Back in 2003, 51 Republicans were in the Senate. Majority Leader Trent Lott – who also sang bass in the then-famous Singing Senators quartet, and yes, Senator and then-Attorney Gen. John Ashcroft really did sing baritone — coined the term “nuclear option.”

Mr. Lott threatened to deploy it. After all, those Democrats were filibustering President George W. Bush’s judicial appointments.

The jovial Mr. Lott turned soprano on the option and never pulled the trigger, so to speak.

By 2013, it was the Democrats who controlled the Senate and White House. And it was Republicans who were filibustering President Barack Obama’s judicial picks like crazy.

Majority Leader Harry Reid pondered the future implications for a few seconds, and then he did pull the trigger.

His precedent established that only 51 votes need to be mustered to approve Cabinet and federal judicial appointments up to, but not including, the Supreme Court.

Republicans warned Nevada Harry that the Democrats would live to regret it.

They lived.

They regretted.

Sen. Chuck “American Gothic” Schumer, Nevada Harry’s colleague in 2013, later explicitly acknowledged that regret.

“Wish it hadn’t happened,” he said on Jan. 3, 2017.

Can’t blame him. In 2017, President Trump nominated Judge Neil Gorsuch to fill the late Justice Antonin Scalia’s seat. Now it’s Majority Leader Mitch McConnell who has only 53 members. He cites the Harry Reid precedent to justify applying the nuclear option to Supreme Court nominees.

This nuclear-option history is what led Mr. Trump and other “get ‘er done” Republicans such as Mr. Schneider to ask this:

If it’s OK to mess with the rules for Cabinet and Supreme Court nominees, why not for declaring that a border-security problem is a national emergency?

Mr. Schneider acknowledges that some fellow conservatives get fidgety about plopping down a precedent that some unscrupulous future liberal president could use to attack all kinds of individual rights.

“That horse already left the barn” is Mr. Schneider’s retort. “The left has declared war on our nation’s founding principles. Constitutional restraints are only as limiting to them as politics permit.”

Can the same be said of Republicans?

Did popes used to be Italian?

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