Society Magazine

A Tale of Two Congressmen (with a 10-Point Constitutional Excursus)

Posted on the 17 March 2019 by Russellarbenfox
A Tale of Two Congressmen (with a 10-Point Constitutional Excursus)[The Wichita Eagle ran this morning an editorial of mine praising Senator Jerry Moran, one of my senators here in Kansas, for breaking with his party and voting in support of the resolution to deny President Trump the authority to use his emergency powers to claim non-appropriated funds to build his beloved wall along the Mexican border. Since my argument in that piece touches on matters of constitutionalism and presidential power that I've written about before, I decided to expand on my piece below.]
President Trump’s declaration of a national emergency back in February, which--in his view and that of his lawyers, anyway--gave him the authority to spend taxpayer money to build a wall along our southern border (despite Congress not having constitutionally appropriated funds for him to do so), has been, to say the least, divisive. That divide, or at least one aspect of it, played itself out interestingly in my own back yard--specifically, in the responses of two men men who represent me in Congress: Senator Jerry Moran (left) of Kansas and Representative Ron Estes of the 4th Congressional District of Kansas (right). (And yes, I know, as a resident of Kansas I am technically represented by two senators, but everyone who knows him--including most of those who genuinely like and have voted for him--knows that Senator Pat Roberts checked out of the whole "citizen representation" thing years ago, so I'll just leave him aside.)
Moran and Estes are both conservative Republicans, which is unsurprising--this is Kansas, after all, and despite some interesting developments and potentialities here in Wichita, south-central Kansas remains a pretty conservative place. Moran and Estes reflect that; their voting records show consistent support for identifiably conservative causes and the agenda of President Trump. (In Estes's case, his career congressional vote total is 95% in line with Trump; for Moran, it's a slightly smaller 89%.)  But in this particular case, those two interests--call them "conservatism," however defined, on the one hand, and the Republican party and its leader as a vehicle for expressing conservative goals, on the other--parted ways. You can chart the parting by looking at the comments Estes and Moran issued when Congress held a vote to remove the president’s claimed emergency powers in this case, as allowed under the 1976 law which presidents have invoked whenever they've used their emergency power over the past 40 years. When the House voted on the resolution in late February--and passed it--Estes voted against it. When the Senate voted on the resolution last Thursday--and also passed it, thus requiring President Trump to veto this legislation if he wants his emergency powers claim to move forward--Moran supported it. Why?
On my reading, Estes thought this issue was pretty straightforward. In a four-sentence statement, Estes mentioned President Trump by name three times. He spoke of Trump “rightfully exercising” his presidential powers, and of “supporting the president’s actions to address this crisis.” He was, in other words, voicing what probably seemed to him a straightforward political matter. The President of the United States was doing something which he, as a Republican, agreed with, and so as a good member of the president’s own party, he was going to support him. In this case Estes, as I think his statement clearly reveals, understood himself to be spokesperson for the Trump-supporting Republicans of his district; whatever else Estes may or may not think about any of the larger issues involved, to not support Trump’s agenda--particularly an agenda item that Trump emphasized all through his campaign and ever since--would be a political betrayal of those who voted for him. This is the "delegate" model of representation, and it is perfectly defensible.
For Moran though, the issue was anything but straightforward. His statement also mentioned President Trump by name three times. But that was in the course of a 26-sentence long outline of arguments, which wound around some of the fundamentals of our constitutional system (such as: it is “a violation of the U.S. Constitution” if the executive branch spends money that goes beyond “appropriations approved by Congress”), around fears for the future (such as: “this continues our country down the path of an all-powerful executive, something those who wrote the Constitution were fearful of”), and around basic ethics (such as: “the ends don’t justify the means”). To be sure, he made it clear that he basically agreed with his party’s (overwrought) concern about conditions at the southern border. But in this case, Moran’s conservative, Constitution-protecting values trumped (pun most certainly intended) the president’s aggressive claims to do what he thinks he must about those conditions. In this case, Moran was acting in accordance with the "trustee" model of representation: being entrusted by voters to use all one’s resources and experience to make, on their behalf, difficult decisions–which this one clearly was.
What do I, personally, think about that decision? Well, I think it was a good one--building a wall along our southern border is, in my view, a pointless waste of money, a needlessly and stupidly provocative approach to the problem of illegal immigration, a symbolic move representative of a genuinely inhumane way of relating to our hemispheric neighbors and the rest of the world, and contemptuous downgrading of hundreds of miles of precious environmental space. It ought not be built, and so if Congress can slow Trump's moves in that regard, they ought to. But given that, as a conservative Republican, Moran almost certainly disagrees with all of those points (except possibly the first; I suspect he really does have substantive fiscal complaints about the proposed wall), what about the substance of what actually brought Moran to his decision? That is, what do I think of his constitutional reasoning about the need to curtail the expansion of executive power through emergency declarations and the like?
More than 4 1/2 years ago, President Obama's move to essentially legalize millions of technically illegal residents of the United States created a firestorm of "Unconstitutional!" accusations, and I waded in. This resulted in a series of lengthy arguments between my friends Damon Linker, David Watkins, and myself. Rather than rehearsing all the theoretical claims and counter-claims those blog posts laid out, let me just briefly lay out, in the context of Moran's constitutional case for opposing President Trump's claim, how I think about the whole matter now:
1) Moran writes that, in his view, "if the enduring value of the Constitution disappears...Americans will be less free." I don't entirely disagree with that, but I wouldn't make that claim myself.
2) I wouldn't make it because it suggests to my mind a fetishization of the U.S. Constitution, and the particular sort of freedom it supposedly guarantees.
3) But I think if you look at our Constitution, or the very idea of constitutionalism, both historically and theoretically, you can see that it has primary served as a means of invoking (and thus defining, and thus also limiting) a particular sense of "peoplehood" as connected to a particular polity. In the modern, post-Westphalian world of sovereign capitalist states, that means it turns the demos into a creature under contract, plugged into and committed to (and perhaps empowered by, but perhaps also restricted by) a set of procedures by which "popular sovereignty" is expressed.
4) I'm not calling this a bad thing; on the contrary, liberal constitutionalism has been an important way by which a limited form of democracy could be realized beyond self-governing communities and on a mass scale, which has had many good results. Still, it simply isn't the sine qua non of freedom, and no particular constitution, most certainly including our own property-defending one, shouldn't be treated as such.
5) Does that mean I don't think it's a big deal when someone violates the constitution? No, I think it is a big deal--but I may disagree with many in what kind of big deal I consider it to be.
6) One thing that is essential to understand is that constitutions--again, speaking theoretically as well as historically--have been, and remain, performative in a way bodies of law in general mostly are not. Since constitutions generally do not define, and thereby do not either allow or proscribe certain actions, but rather define and thereby either include or exclude certain persons, or particular certain ways said persons may or may not qualify as citizens, or the particular roles those citizens may or may not execute in diverse ways, there is a qualitative element to questions of constitutionalism that is simply besides the point in most other areas of law.
7) This means it is perfectly reasonable, I think, to declare an action both legal and unconstitutional. Someone--say, a President of the United States--could take an action that is arguably within the realm of legal statutes, but has taken that action in such a way, or justified it with such arguments, or made the choice to take that action in such a context, as to reject the norms, traditions, assumptions, or provisos that have developed in conjunction with the performance of the constitution in question. (This, for everyone who didn't bother to click on the links above, is what I said about Obama's immigration order--legal, but not constitutional.)
8) Now, as those norms themselves perpetuate the way in which the constitution in question is interpreted, and as those interpretation and their continued performance necessarily impact the way in which we as citizens understand ourselves to be governed, it is perfectly logical to understand unconstitutional acts to be a threat to the "peoplehood" under which we our governed.
9) So consequently, when President Trump claims he has the inherent emergency-declaring authority to spend money that Congress, which according to the language of the U.S. Constitution is the only branch of our national government which can authorize the spending of money, has denied him, then he is performing the role of President of the United States badly.
10) The law may or may not make room for the legitimacy of his performance. But in acting in this way, he is challenging the one the primary procedures by which, for better or worse, Americans have historically articulated their democratic sovereignty--and while that may not be an immediate threat to our "freedom," it absolutely challenges (yes, in the same way Obama, Bush, Clinton, Reagan, and most other presidents also challenged) the premises on which this particular democratic polity was, and still is, imagined to work. So, yes--it is a big deal, and worth trying to stop, for whatever reason.
To go back to Moran--however much our reasoning may diverge, note what is the same about it. Moran is thinking about the U.S. Constitution, about how it functions and what it means. We don't think about it the same way, but his thinking about it, however much I might dispute elements of it, is serious. And it is always impressive to see someone in Congress think seriously about not just the political popularity, or the partisan necessity, of a given issue, but rather about, for example, the danger of establishing a “precedent for future presidents” (as Moran did). Estes’ statement invoked President Trump, and for many voters around here that was enough; but Moran, on the other hand, invoked his “understanding of history,” his “intellect,” and his “gut.” That is a hard decision, and I think it is one deserving of praise.
Not that my praise necessarily matters a great deal. After all, I’m neither a Republican (though I do vote for some on occasion) nor a conservative (though I hold to some conservative views); as such, the core supporters of both men can dismiss these thoughts of mine out of hand. But aside from that, I am also an American citizen and a resident of Wichita, Kansas, and as such, these two men represent me in Washington, D.C. So as someone you represent: thank you, Senator Moran.Though I may often disagree with you politically, this week you’ve earned my appreciation, and my trust.

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