RICHARD BUTLER. Unconstitutional politics.

Jan 28, 2019

The evidence is now in. 

Donald Trump wants a second term: his base is indispensible to this end; he must deliver on the biggest chunk of red meat he tossed it during the election campaign – the wall on the border with Mexico- which he would have Mexico pay for. Problem is, Mexico refuses. 

So, he now insists that the US taxpayer meet the bill. 

The Congress, which, under the Constitution, has the exclusive power of formulating the budget, has refused to do it. 

Trump’s response, through the shut-down, the longest in US history, involves trashing and overriding both the Congress and the Constitution. 

Trump’s conduct is starting to remind people that the US is, or should be, a constitutional Republic, not a monarchy or an autocracy.

Trump condemned Speaker Pelosi’s decision to withdraw the congressional invitation to him to deliver the 2019 “State of the Union” address in the Congress, until he terminates his partial shut-down of the Government. He said that Pelosi’s action would “deny the people the opportunity to hear the truth”. 

Trump’s attachment to the truth of any matter, is tracked by the Washington Post. It reported on January 21st; the second anniversary of his assuming office, that Trump had made 8,158 “ false or misleading claims” in his first two years. And, that the pace of this has increased. Of the 8000+ falsehoods, 6000+ were uttered in his second year. There has been some 300, during the shut-down period.

Of necessity, the central focus during the last month has been on the shut-down. Its fundamental political and constitutional aspects bear analysis. 

On the politics: Trump has elevated the Wall into a dictum of national security. The reasons he has given for this are transparent fabrications, which he has repeatedly embellished. And, this has involved ever more flagrant, crude, reliance on racism and xenophobia. 

There seems to be no limit to his vilification of those seeking to cross the border: terrorists, criminals, drug smugglers. A particularly vicious recent assertion was that Islamic prayer rugs had been found at the border. 

He has demanded $B5.7 from Congress for the Wall. His response to Congress’ refusal to comply has been the partial shut-down of the government, until he gets it. His motivation is to shore up his “base”, and to satisfy the right wing commentariat. He took his decision on the shut-down in response to urgings from the latter, in their media. 

Speaker Pelosi has described his wall proposal as immoral. The same could be said of the recent separation, at the border, of several thousand infants and children from their parents. 

The Republican Party has so far supported his stance, but an important complaint by key right wing commentators has been that he hasn’t gone far enough. 

He has been encouraged to declare a national State of Emergency. And White House plans to this end have been leaked. It would involve diverting already approved appropriations from the Pentagon to build the wall.

Opinion surveys are showing that his political objective is failing with respect to his base. The number of those who say they still support him is in decline. More widely, national data shows that, a significant majority of people hold him responsible for the shut-down, not as he insists, the Democrats or Nancy Pelosi. 

On the constitutional front, the nature and scale of the conflict that has been playing out between the Executive and the Legislature is extreme. 

The legislature has the constitutional responsibility to establish a budget and the appropriations to fund the operations of Government . Disputes about policies and levels of funding for them are commonplace. The Congress is expected to resolve them, to reach agreement. The outcome of that negotiation is then put into legislation, which the President is to promulgate by signing it. 

In cases where there is concern that a course of action so legislated may be at odds with existing law, it can be referred to the third branch of the US constitutional system; the judiciary, ultimately, to the Supreme Court. 

By his decision to shut-down the government, Trump has held hostage to his determination to build his wall, government expenditures which provide the livelihoods of some 800,000 federal employees and 1 million Federal contractors. 

This violates the relationship between the Executive and the Legislature envisaged in the Constitution. As one member of Congress observed: “everything is up for negotiation, but not the arrangements of the Constitution”.

The question of whether or not Trump has the right to cherry pick from within potential budgetary legislation under the threat of withholding approval of any of it, has not been referred to the Court. 

It’s not easy to know how the Court would react, if asked to judge Trump’s actions, given it’s recent disposition to support the notion of fairly extensive Executive Privilege. 

It can be asked, why haven’t the Democrat’s brought this situation to a halt; given Trump the money, so as to come to the aid of the families who are about to miss their second wage cheque and contract workers who are not being paid and have no right to lost pay. Reports of the serious hardship being caused have swelled. And there is danger, such as in the degrading of air traffic controls and, access to medical services.

Trump and the people around him; by one member of his family and members of his Cabinet, have made a series of remarks seeking to minimize the hardship. This has caused shock at the sheer distance these people evidently are, from ordinary people. Marie Antoinette’s remarks on the poor needing to switch their diet, have been recalled. 

Trump’s conduct has raised serious political/constitutional issues, so that it is being asked; would capitulation by Congress to his demand on the funding of the wall establish a pattern for the future conduct of the nations business by Trump. 

On what other subjects and on how many of them and how often, would he again shut-down the government if Congress declined to make its decisions conform with specific actions he has decided he wants taken? He can argue and urge politically for specific actions but it is not envisaged that the President should break to system, itself, if he doesn’t get his way 

It is precisely to avoid this kind of diktat from the executive branch that the constitution established three separate and equal branches of government: the checks and balances, the separation of powers, which are central to the constitutional framework of the Republic. 

There is also the reality that is truly irksome to the Democrats and to a not inconsiderable number of Republicans, that Trump’s wall gambit is a lie. There is no such threat or emergency that would remotely justify the action Trump is demanding.

None of what is occurring now and, indeed has been expanding during the last two years, would have been possible without the role that has been played by the leader of the Republicans in the Senate, Mitch McConnell of Kentucky. His ruthless, partisan cynicism has been indispensible to Trump. 

In stark rejection of his constitutional responsibility as Leader in the Senate, he has supported Trump’s the destructive attack on the pillars of the US political system.

And, there is an omnipresent backdrop to the Trump Presidency. It has two outstanding features:

First, that there has not been a day in his presidency that has been free of the need for lawyers and/or PR people to seek to explain, very often to lie about, past actions and personal conduct by him, in a wide variety of fields, but above all with respect to actions he took to ensure his election. It’s hard to recall a comparable time in which the President of the US has been under such a level of forensic, criminal investigation.

Secondly, it is now widely accepted that Trump has no interest in the detail or some say even the substance of policy, or the hard work this entails. His interest is in the appearance of things, particularly as projected on television. 

It is commonplace now, for US commentators to describe the Trump modus operandi and that of the people on whom he’s relied in business and continues to rely on, while in the White House, as redolent of the Mafia. It is all so malodorous. 

During the last few days, while allegedly looking into a way out of the political dead end his wall based shut-down has entered, and reportedly seething over Nancy Pelosi acing him on the State of the Union speech, Trump’s long term fixer, Michael Cohen, who is about to enter goal, suddenly withdrew from testimony he was about to make to a congressional committee, on his past with Trump, stating that he did this because Trump had threatened members of his family: shades of Don Corleone. 

And, today another Trump fixer, Roger Stone has been indicted by Mueller for, inter alia, lying about his work for Trump on the origin of emails stolen from the Democrats and, witness tampering. 

Trump has now agreed to reopen the government while Congressional leaders work, further, on an agreed solution to issues of security on the border. But, this is for only three weeks. 

Trump’s decision was clearly influenced by: the polling data; the rising volume of reports on hardship being experienced; the declining confidence in air traffic control; and, restiveness amongst Republican members of Congress. But, his demand for $B5.7 for his wall is unaltered and he has now elevated his threat to declare a state of emergency, if after the three weeks, no agreed solution acceptable to him is found.

Can we hope that the keepers of the Alliance flame in Canberra are following all of this and may be asking questions about the company we choose to keep so unreservedly and, who continue to assume that we will accompany them, when John Bolton has his way and Trump decides to attack Iran; or is it now to be Venezuela?

Richard Butler AC: former Australian Ambassador to the United Nations and, Professor of international relations at NYU and Penn State Universities.

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