The “Wall” and Congressional Resistance From Californians

Richard Rubin
Attorney Richard Rubin has taught at the University of San Francisco, Berkeley and Golden Gate University, is a regular columnist for the Marin Independent Journal and was Chair of the California Commonwealth Club Board of Governors, 2017-2019.

Today, talk about “the Wall” is at the center of a raging national debate. Years from now when the history of this time is told, I suspect that this barrier if it is ever built or even still exists, will take up barely a page or two in the civics textbooks.

It may stand or have fallen by then as a failed symbol of this president’s controversial reign. But there will be much more important developments to talk about which will have changed the nation’s historical trajectory under this mercurial leader.

To many Americans the wall is little more than a one-word political slogan for intolerance with heavy racist overtones that caught on as a rallying cry for millions of troubled voters who are not racists but clutch it as a convenient vehicle to express deep resentment—justifiable or not—for a government that they believe has treated them unfairly.

The bigger story of this time will be the courage and the willingness of the Congress to reassert itself as a check on this president’s authority who considers himself insulated from any affronts to his magisterial ambitions.

That job may fall largely to a handful of Californians.

Most notable are House Speaker Nancy Pelosi, GOP House Minority Leader, Kevin McCarthy, Rep. Adam Schiff of Los Angeles County who heads the Intelligence Committee, Rep. Maxine Waters, of Los Angeles, the uninhibited Chair of the Financial Services Committee, and Rep. Eric Swalwell, the articulate and former Contra Costa County prosecutor contemplating a presidential run who is getting lots of facetime.

With the exception of McCarthy, all have signaled their intention of further widening what Trump labelled in his State of the Union address as “ridiculously partisan investigations” into the constitutionally threatened dealings of this White House.

Speaker Pelosi, in what could be the valedictory turn of a storied career, seems prepared to bring the full weight of the legislative branch to bear against this president after the previous GOP-led Congresses issued him a free pass.

Trump’s failure during his address to acknowledge Pelosi as the newly-elected Speaker—a courtesy which Republican and Democratic presidents before him have always extended—did not go unnoticed.

Nor was Pelosi given the opportunity to introduce Trump before he began speaking—another hallowed tradition. Many saw this as a childish put-down of the one individual who is having considerable success upstaging him.

The first order of business will be jump-starting again the closed inquiry into allegations of collusion with Russian operatives of interference in the last presidential election—-the principal target of Special Prosecutor Robert Mueller’s investigation which could be getting ready to release explosive findings.

Trump, however, is likely to save much of his wrath for the Ways & Means subcommittee which has set its sights on finding out what’s in Trump’s tax returns—a boundary line which he has declared off limits.

If congressional requests for a narrowing list of White House higher-ups to testify on a variety of issues are met with refusal it will result in subpoenas that might require court enforcement. Trump’s attorneys have already challenged Congress’s right to subpoena the president and demand his appearance, and Mueller has chosen not to force the issue.

Former presidents have attempted to usurp the constitutional prerogatives of Congress using Executive Orders with mixed results although only 16 were overturned through the mid-20th-century.

Trump has already invoked many times that number with considerable success.

Theodore Roosevelt more than a century ago is credited as the first president to seek significant expansion of the scope of presidential authority under what was characterized as “inherent powers.” In the words of one presidential scholar, Kenneth Mayer in his book, “Executive Orders: With the Stroke of his Pen, Presidential Powers”, “Roosevelt’s view was, “Unless I can’t, I will,” while William Howard Taft’s (TDR’s successor) was “Unless I can, I can’t.”

Trump’s extraordinary efforts to further enlarge his Executive powers was thwarted when the Supreme Court last year in what it clearly considered over-reach left standing a decision overruling his sweeping ban on all immigration from seven Muslim-majority nations.

These orders can deal with everything from the most prosaic (allowing federal employees “to depart at noon on December 24”) to ones with historic impact such as Abraham Lincoln’s Emancipation Proclamation and Franklin Delano Roosevelt’s order in 1944 to intern Japanese Americans during World War II (finally repudiated in 2018 by the Supreme Court).

Ironically his pledge to build an expensive wall (which cannot be accomplished by a simple Executive Order) could be the one fool-proof trap that Trump somewhat ingenuously set for himself and congressional resistance, which is mounting, could be the insurmountable barrier he did not foresee that ultimately brings down his presidency.

At the very least if something resembling a wall, a fence, a barricade of some kind is not erected before the 2000 presidential nomination proceedings are well underway, this might trigger a mass desertion by Trump’s wavering supporters—which is exactly what he fears.

We should have some of the answers when the bi-partisan congressional panel that is working hard to avoid a second government shutdown concludes its work by February 15.

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