November 26, 2019
“It is a core tenet of this nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny … Stated simply, the primary takeaway from the past 250 years of recorded American history is that presidents are not kings.” Ketanji Brown Jackson, Federal District Judge
Donald Trump was told by a Federal judge on Monday that he was not a king. At issue was whether former White House Counsel McGahn could be forced to appear before Congress after receiving a subpoena from the House Judiciary committee. The White House claimed McGahn, and other administrative officials, have absolute immunity and can therefore refuse to appear before Congress. As far a reach as this sounds, the Bush administration tried to same argument in 2008 in its efforts to keep former White House Counsel Harriet Miers from testifying before Congress. The Courts did not accept the argument then, and did not accept it now. So McGahn will have to appear before Congress - though he can invoke executive privilege once there.
Though Trump lost this battle in court (the administration had even argued that the District Court had no standing to hear the case), his presidency still stands as a test of constitutional order. As CNN’s Stephen Collinson noted,
All of Trump's scandals are fusing together into a momentous fight over his staggeringly broad claims of expansive presidential power. How it turns out will shape his personal political legacy, the nature of the office he has held for nearly three years and potentially the American political system itself.
Trump’s overreach on executive powers can be seen in many facets of his administration, and is particularly evident in relation to the signature issue of Trump’s presidency: immigration. He might get impeached for making military aid to Ukraine's government contingent on investigating Joe Biden and his son, but he has done far more damage to the lives of millions of people through immigration enforcement and has done so in violation of the law and constitutional separation of powers.
Asylum law gutted through executive rule changes
For many years the United States has been the country that receives the most asylum seekers. Anyone present in the United States - in the interior of the country or at the border, whether inspected at the border or not - may seek asylum. The basis for an asylum claim is that the person “is unable or unwilling to return to [their home] country because of persecution or well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.” If someone is seeking asylum they must make a declaration to that effect to immigration authorities and then are screened via a “credible fear” interview. If the person passes the credible fear interview, s/he will come before an immigration judge and present their case for asylum, requiring that s/he offer proof that their lives are in fact in danger if they are returned to their country.
Trump has gutted this process. He requires asylum seekers to await their cases behind bars, even after they pass a credible fear interview - in direct violation of ICE's own operating procedures. Almost one-third of the people in ICE detention right now have established a credible fear of persecution or torture if returned.
He then put forth a rule requiring people to wait in Mexico for an asylum hearing - essentially denying them meaningful access to counsel to help build an asylum case. The court process is a mockery of due process - as judges are not even physically present.
Still not content, the administration established a new rule that denies people the right to apply for asylum if they passed through a third country before arriving to the United States border - unless they have first applied for asylum in that third country and been denied.
None of this was done through Congressional process. Trump has simply legislated the dismantling of asylum law on his own. All of this will come under court review eventually, but for now stands as a significant overreach of executive authority.
Bypassing Congressional authority to fund detention/Remain in Mexico
Under Article 1 of the United States constitution, Congress has the direct authority and responsibility to decide how money is spent. Further, all spending bills are to originate in the House of Representatives. The executive has some discretion to re-program funds to fill in for contingencies, but such transfers are supposed to be approved by Congressional oversight committees.
In FY 2019 Congress authorized funding for a 45,000 daily average of detention beds (the number of people detained per day). At the time the administration was holding close to 49,000 people and the expressed intent of this authorization was that the administration would lower its detention rate to 40,000 by the end of the year- so it would average out to 45,000.
Trump simply ignored this. By August of 2019 daily detention was up to 55,000, and the administration was over budget. As we reported before, Trump simply moved money from the Coast Guard to cover the shortfall. He then moved more money from FEMA to pay for the court debacle at the border as a result of his Remain in Mexico policy. The administration did not seek authorization for this new use of funds. It simply transferred the funds and then notified OMB of the transfer.
Currently the administration is seeking to raise fees charged by USCIS - with plans to transfer up to $207 million a year to ICE. A complete violation of budgetary authority.
Bypassing Congressional oversight, advice and consent
The administration’s immigration policies are implemented by the Department of Homeland Security, through Customs and Border Protection, Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services. None of the directors at any of these agencies has been confirmed as a director by Congress. They are all in their positions as acting or temporary directors.
What Trump has done is get people confirmed to a lower level position, and then moved them into directorships when needed. He most recently did this with Chad Wolf, the current acting director of the Department of Homeland Security. Congresswoman Norma Torres writes,
Chad Wolf was not confirmed to lead the Department of Homeland Security. He couldn't be — even a Senate as polarized as this one would have rejected him. Instead, they confirmed him for a lesser role, the undersecretary of the agency's Office of Strategy, Policy, and Plans, clearing the way for Trump to then declare him the acting secretary of the entire department to fill a leadership vacancy.
Trump declared some time ago that he prefers “acting” heads of agencies, because he gets to move them around at will. This makes a complete mockery of the advice and consent role that Congress is supposed to play. It also seriously clouds the lines of responsibility when things go wrong - and on immigration policy they often go wrong.
So, Trump will not be impeached for any of this. Party loyalty and political caution (cowardice?) ensures that Congress will not act directly. At best, they will assert their authority in the budget process and hope it sticks this time. We’ll see. But Trump’s abuse of executive authority extends well beyond pressure on Ukraine. If he is not reined in, future presidents will push even further. This is how democracy dies. It’s already very ill.