Pointing out hypocrisy can be more than a political gotcha. In the case of President Donald Trump’s emergency declaration on the southern border, it’s a useful way to highlight the fact that Democrats who are attempting to regain power have not only refused to live by the rules they’ve set for the opposition, they’re also threatening to break those rules in even more expansive ways in the future.
As soon as Trump declared a national emergency to fund the building of a wall on the Mexico-U.S. border—a clear attempt to circumvent the legislative branch and one that I hope leads to the Supreme Court overturning the abused National Emergencies Act (NEA)—the first thing Democrats did was promise to use the law for their own partisan ends, immediately exposing any supposed apprehensions about executive overreach as a fiction.
“Once we beat Donald Trump, we promise the word and spirit of the Constitution will be upheld, because the proper checks and balances are far more important than any fleeting political gain” said not a single Democrat ever. Instead, Kamala Harris, Cory Booker, Elizabeth Warren, Michael Bennet, Chris Murphy, and a slew of others senators threatened to use the same emergency powers for “real” crises like climate change and gun violence. Because it’s not the abuse of power they find problematic, but the objectives Trump wants to use that power for that bother them.
“If Trump gets away w this border emergency declaration,” Sen. Murphy tweeted, “then a Dem President can declare a gun violence emergency and institute universal background checks and an assault weapons ban by executive action.”
Can they? The emergency declaration allows reallocating funding earmarked for military projects, it doesn’t empower the president to “ban” (fictitious) categories of firearms any more than it empowers him to ban certain kinds of political speech. Outlawing “assault weapons,” the giddy dream of an authoritarian senator, would not only be another attack on on separation of powers, but also on the Second Amendment—an abuse Democrats have long embraced.
So while some of us may incidentally side with Democrats on the use of Trump’s emergency declaration, we don’t share a common philosophical aversion to the use of executive power. In fact, because of them, none of this is “unprecedented.” It was the Obama administration (with praise from virtually every nationally elected Democrat) that normalized this kind behavior.
It was Obama who transparently circumvented the will of Congress to implement a “temporary stopgap measure” that legalized millions of illegal immigrants. It was the Obama administration that entered into international climate agreements—one they argued was perhaps the most important ever signed in the history of the world—without asking the Senate for permission. It was Obama who attempted to ban offshore drilling using the obscure 1953 Outer Continental Shelf Lands Act without congressional approval. Not one elected Democrat has expressed regret for any of it.
There were times that Obama dispensed with the charade of legalities altogether. When his administration implemented Obamacare’s “cost sharing reduction” subsides—direct payments to insurance companies meant to hide the cost of the Affordable Care Act from voters and bribe insurance giants to participate in the law’s exchanges—Congress had not appropriated the funding. It was then-Treasury Secretary Jack Lew, without offering any legal justification, who ordered the administration to begin making payments. The administration spent around $7 billion dollars per year on the project, even after a federal district court for the District of Columbia found the practice unconstitutional.
There was not a word of push-back from any of the Democratic Party’s 2020 presidential hopefuls.
Whether it was for partisan reasons or not, many of Trump’s early actions strengthened checks and balances—and, in the process, negated the bulk of Obama’s legacy. If Trump makes a habit of ruling by fiat, as his predecessor did, he can expect much the same. And he will deserve it.
Of course, there may be good arguments that existing federal laws give Trump the legal authority to use already appropriated Department of Defense funds to build the wall. So Democrats could easily propose, as I wish Republicans would, that the NEA itself be overturned or narrowed. After all, the problem isn’t just that the executive branch grabs too much power, but that Congress cedes too much of it. But neither Harris nor Sanders nor Booker want constitutional norms followed. They want constitutional norms followed when a Republican is president.
You can’t keep playing by two sets of rules and expect your opponents to unilaterally disarm when they hold power. Most Republicans are unlikely to engage in efforts to stop Trump because it would be political suicide after their constituents watched eight years of Obama’s pen-and-phone governance. Democrats obviously have no compunction about wielding executive power. And they will have a stronger case to make to voters in the future because of Republican complicity on the emergency declaration today. And so it goes.
Then again, no one really pays a political price for hypocrisy, do they? In the age of hyperpartisanship, few voters care about neutral principles or the importance of process. Partisans merely brush aside claims of hypocrisy by hurling accusations of “whataboutism”–a favorite neologism of people who don’t want to talk about the importance of context, precedent, or consistency.