Our country’s founders provided a Constitution designed to protect against tyranny by providing checks and balances — dividing power among branches and levels of government. The rivalries among executive, legislative and judicial branches, and also between state and federal levels, continue to foster emotional debate. Utah politicos are in the middle of these ongoing disputes.
After signing legislation to prevent a government shutdown, President Donald Trump declared a national emergency diverting congressionally appropriated monies to build a border wall. His actions are challenged as unconstitutional overreach. How should Utah politicians respond?
Pignanelli: "Trump signed what Congress passed … then said he would do all this other stuff. That is monarchical and against the spirit of the Constitution." — JonahGoldberg, National Review
Presidential executive orders should be like abstinence from alcohol — rare and only for the most compelling of reasons. That so many of our current problems are a result of such decrees and other transfers of power voluntarily made by Congress demonstrates the wisdom of a Constitution suspicious of executive power.
Candidate Trump was legitimately critical of too many orders issued by his predecessors. As president, he is breaking records exercising such prerogatives. The disregard for a congressional decision on spending, along with public statements admitting the emergency was dubious, leaves no wiggle room for those who proclaim adherence to fundamental constitutional principles. Regardless of their position on constructing the wall, Utah politicians should support an aggressive full-throated bipartisan challenge to this executive action and reverse a decades long trend. Hopefully it will begin the longer process of clawing back the authority to the legislative branch.
The 1952 executive action by my hero President Harry S. Truman to nationalize the steel mills was thwarted by the U.S. Supreme Court with the rationale the president is empowered to execute laws, not to act as a lawmaker. Later at a party held by the author of this landmark opinion, Justice Hugo Black, Truman stated “Hugo, I don't much care for your law, but, by golly, this bourbon is good."
Webb: In the absence of congressional action, every president acts unilaterally — sometimes improperly. President Barack Obama was jerked back by the Supreme Court on numerous occasions. His administration lost more frequently at the high court than any administration in recent history.
The real reason for presidential overreach is an ineffectual, impotent Congress. If Congress can’t solve the nation’s problems, the president, especially one as impulsive as Trump, will surely jump in.
Utah members of Congress should respond to this presidential power play by passing comprehensive immigration reform that protects the border and reduces illegal immigration, deals sensibly with those seeking asylum, and creates greater opportunity for prudent, well-managed legal immigration.
A Congress that actually functions can easily thwart presidential excess.
Utah leaders often suggest constitutional reforms to restore a proper balance in the federal system. One approach is a legislative resolution calling for a convention of the states to amend the constitution as allowed by Article V. Sen. Evan Vickers and Rep. Merrill Nelson are offering that resolution (SJR 9) this session. Former bank executive David Hemingway and Congressman Rob Bishop are proposing the “Re-empowerment of the States Amendment,” allowing two-thirds of states to repeal a presidential executive order or an administrative regulation. Do any of these proposals have a chance to succeed?
Pignanelli: Many right- and left-wing organizations despise these efforts — signaling there must be something to justify them. A national conversation to mandate a balanced federal budget is necessary and can only be productive. If we have to live with ever-increasing executive orders and administrative regulations, then the process of allowing states to push back is an imperative. This has become especially evident on recent proclamations regarding immigration.
Webb: The founders clearly intended states to have co-equal status with the federal government — and to resist federal encroachment. But over many decades states have lost most tools allowing them to push back against the national government.
Restoring some state clout, such as allowing a supermajority of states to overturn a federal law or regulation, would be a worthy purpose to hold a convention of states. Any real solution must be structural.
Legislators ought to enthusiastically support SJR 9 and not listen to the fear-mongering conspiracy theorists who damage the cause of conservatism by mistrusting state leaders.
Federalism and state powers have long been a messaging point for Republicans, but is this changing?
Pignanelli: Liberal state leaders, frustrated with Washington, D.C., antics, are learning the benefits of federalism. Transformations are underway.
Webb: Sensible Democrats ought to realize that concentrating all power at the federal level is a danger to their liberal ideals — and also results in more government gridlock and dysfunction.
Federalizing everything means that when a conservative president and conservative Congress take over, liberal states aren’t able to create the progressive utopia of their dreams. States ought to be free from much of federal control so they can be socialist or capitalist, libertine or orthodox — as they wish — and see which works out better.