An Index of Unconstitutionality

I recently said some (more) bad things about President Trump, so naturally the next thing that happens is that I come across news about one of the good things about this administration: Donald Trump has broken a record for the fewest executive agency regulations issued during a year.

CEI regulations guru Clyde Wayne Crews Jr. said in a year-end report provided in advance to Secrets that Trump ended the year with 3,367 new regulations. That is the lowest since records were first kept in the 1970s….

Federal Register pages are also way down, winning praise from corporate America and consumers. Under Trump the daily list of pages totaled 61,308 in 2017 and 68,082 this year. Former President Barack Obama’s high was 95,894 in 2016, as he was rushing through new rules before Trump took office. However, both both former Presidents George W. Bush and Bill Clinton had lower pages published in some years than Trump.

In what Crews has dubbed the “Unconstitutionality Index,” Trump has has also slashed the percentage of new rules to new laws passed by Congress and signed by Trump…. Trump’s 2018 index was 12: 3,367 new rules compared to 291 new laws. The Index reached 29 under Obama.

This is all great, and I love the idea of an Unconstitutionality Index.

But the whole problem with the Trump administration is the sense of overhanging existential dread, the sense that “for every good thing we get out of this administration…there is always the question looming in the background of when we’re going to have to pay the price.”

In the case of regulations, part of the problem is that deregulation is being carried out by the authority of President Trump’s appointees in the executive agencies and not through legislation passed by Congress. So Trump isn’t curtailing the actual power of the agencies; he is merely appointing people who are less inclined to use that power–a situation that can be suddenly and completely reversed when a Democrat is elected president.

Worse, while Trump’s appointees may be issuing fewer regulations, his supporters’ embrace of “economic nationalism”–as championed recently in Tucker Carlson’s screed against “market capitalism”–is turning the Republican Party against free markets and in favor of more government control.

We can see that, for example, in the one area where Trump unabashedly loves regulations and central planning: trade. As Scott Lincicome and I recently discussed, the tariffs the president has so far imposed on steel and aluminum, as well as his punitive tariffs against China, have been based on “emergency powers” granted to the president by Congress. The “emergency,” in this case, is the ordinary conduct of international commerce. Clearly, the concept of “emergency powers” is being abused to allow the president to impose tariffs without having to seek approval from Congress. I don’t know if Wayne Crews includes this in his “Unconstitutionality Index”–he’s something of a single-issue advocate, so this may be outside the scope of his efforts–but I include it in my own index of Trump’s unconstitutionality. And it is about to get worse.

Donald Trump’s latest brainwave is to end his deadlock with Congress over funding for a border wall by simply declaring a state of emergency and invoking emergency powers that do not require congressional approval.

This is, clearly, not a genuine “emergency.” I have no doubt that Congress has foolishly granted the president many unilateral powers that he can invoke in this case, but they have done so through the abdication of their constitutional responsibilities. The only kind of emergencies that are actually consistent with our constitutional order are situations in which the president must act before it is possible for Congress to convene and give its consent. This applies in time of war–after Pearl Harbor or 9/11, for example, when it took Congress days to convene and weeks to make decisions, and the president was justified in taking immediate action in America’s defense. In a somewhat more expansive example, Thomas Jefferson leapt at the offer of the Louisiana Purchase before he was sure he had legislative or even constitutional authority to do so. In all these cases, the president still had to submit his actions to Congress as soon as possible. FDR sought a declaration of war, Bush an authorization for military force in Afghanistan, Jefferson a congressional appropriation of funds.

In this case, Trump is considering declaring an emergency over a situation that has existed for decades and in many respects is less urgent now than it was in previous years. The great wave of Mexican immigration has receded, and the number of illegal immigrants apprehended at the southern border in 2017 was a little over 300,000–down from more than 1.6 million back in 2000. More to the point, the current level of immigration is little different than it was during the two years when President Trump had a Republican majority in both houses of Congress. If Congress were willing to authorize the wall, it had plenty of opportunity to do so. Moreover, the policy for which Trump is invoking emergency powers is a massive construction project that will take years to complete. If it takes him years to do something, then it is by definition not an “emergency” measure.

President Trump is simply looking for an excuse to ignore Congress and rule by executive decree. If you object that President Obama did the same thing on the same issue, changing immigration law by executive order–well, that just compounds the point. At the time, I said that Obama was acting like a dictator, and I hold Trump to the same standard. To declare a state of emergency in order to bypass Congress and suspend our constitutional order is not merely a flagrant abuse of power. It is–finally and for real–an impeachable offense.

That’s a speculation for the future, assuming there is no one with any sense left in the administration who can talk the president back from this ledge. For the present, it reminds us why we should not be congratulating this president for his achievement in reining in the regulatory state. He has more than compensated for that good deed by attempting to unleash unlimited executive power in other areas–vindicating our sense of overhanging existential dread.

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