Lloyd Green at The Guardian:
A shutdown averted, a constitutional crisis born. On Friday, Donald Trump declared a national emergency to gain additional funds for his much promised border wall, bypassing Congress and raiding the Pentagon for $3.6bn, already a legally dubious proposition in the eyes of the justice department. So much for Mexico paying.
Once upon a time, Trump and his legal minions brayed against unilateral executive actions, calling them tyrannical. Not any more. Barack Obama is out of the White House.
Hail Caesar, hello his praetorian.
Take Jay Sekulow, Trump’s personal lawyer. In April 2016, in a brief to the supreme court attacking Obama’s unilateral expansion of the Deferred Action for Childhood Arrivals (Daca) program, Sekulow painted Obama as a despot.
Echoing James Madison, founding father and fourth president, Sekulow thundered that the “accumulation of all powers, legislative, executive and judiciary, in the same hands … may justly be pronounced the very definition of tyranny”. He also compared Obama and his executive order to Harry Truman’s unconstitutional seizure of America’s steel mills during the Korean war.
According to Sekulow, Truman “violated controlling precedent and abdicated [his] constitutional duty to faithfully execute the law”.
In other words, by expanding Daca without a congressional green light, Obama had committed an impeachable offense.Justice Robert Jackson Concurring opinion, Youngstown v. Sawyer, 343 U.S. 579 (June 2, 1952)"
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. [Footnote 4/4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
