The authoritarian option

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The authoritarian option

This is the 16th day of the partial government shutdown -- the second longest in history. Eight hundred thousand federal workers are furloughed or being forced to work without pay. National parks are filling up with trash. And people may not be able to get their tax refunds on time.

Trump has refused to reopen the government without $5.6 billion to fund construction of a wall across the southern border of the United States. (The actual construction of such a wall would cost at least $20 billion, and as much as $70 billion.)

He's in a difficult political position. For two years, he was unable to secure wall funding from a Republican-controlled Congress. Now, Democrats control the House and have made it clear that they will not support any funding for a wall.

Trump has two straightforward options: 1. Keep the government closed indefinitely, or 2. Drop his demand for wall funding and suffer a humiliating defeat to Speaker Nancy Pelosi.

Recently, Trump was leaning into the first option, telling Pelosi and Minority Leader Chuck Schumer that he was willing to keep the government closed for months or years. But that didn't seem to have any impact on Pelosi or Schumer.

So now Trump is embracing a third option: declaring a state of emergency and ordering the military to construct the wall without legislative approval.

Yes, it would be a gross abuse of power and provoke a constitutional crisis. But it would also solve his current problem, and that's usually enough for Trump.

What Trump is saying

"I may declare a national emergency dependent on what's going to happen on the next few days," Trump said outside the White House on Sunday. He indicated that he would let negotiations between White House staff and Congressional staff — a process being overseen by Vice President Pence — play out through the middle of next week.

After that, Trump said, a "national emergency" declaration was on the table. "We have to have border security. If we don't have border security, we are going to be crime-ridden, and it's going to get worse and worse."

What the law says about Trump's "national emergency" authority

Trump's lawyers are hard at work concocting a justification for unilaterally constructing the wall. It's hard to know exactly what they will produce.

Trump says he may "declare" a national emergency, which he has the power to do under the National Emergencies Act of 1976. But that same law allows the House of Representatives to pass a resolution terminating Trump's declaration immediately. Such a resolution would be referred to the Senate and is required to be reported out of committee within 15 days and voted on by the full chamber no longer than three days later.

The Senate is controlled by Republicans. But it's far from certain that a majority of Republicans would be willing to affirm a national emergency declaration that subverts their legislative authority. Several Republican Senators have already called on Congress to open the government without funding the wall. All Republicans voted to fund the government without wall funding just a couple of weeks ago.

Trump's Youngstown problem

Even if Congress does not terminate Trump's national emergency declaration, it would be vulnerable to legal challenge. Much of the land along the Texas border where a wall would be constructed is privately owned. The land would need to be seized by the government before construction could begin. That seizure could be challenged by the landowners.

That's exactly what happened in 1952 when President Truman seized the nation's steel mills to keep them open in the face of a worker strike. Truman said the action was necessary to protect "American fighting men" who were "engaged in deadly combat with the forces of aggression in Korea."

The steel industry sued Truman, and the case ended up in the Supreme Court. In the case of Youngstown v. Sawyer, the court ruled against Truman and invalidated the seizures. The most useful framework was outlined in a concurring opinion by Justice Robert Jackson.

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum…

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority…

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb…

If Trump were to order the military to build a wall despite Congress' refusal to approve the funding, his action would fall into the third category. Such an order would violate numerous statutes, including those that prohibit the military from enforcing domestic law or conducting searches and seizures.

Why the White House wants to link the wall to terrorism

Rather than declaring a new state of emergency, Trump could try to claim that construction of the wall is authorized under existing authority. Perhaps this is why White House Press Secretary Sarah Sanders was so eager to link the construction of the border wall to terrorism.

"We know that roughly nearly 4,000 known or suspected terrorists come into our country illegally, and we know that our most vulnerable point of entry is the southern border," Sanders said on Fox News Sunday.

Such a claim, if it was true, might be used to justify the construction of the border wall based on the 2011 law that allowed the military to operate domestically to detain "suspected terrorists associated with Al Qaeda or the Taliban."

But it is not true. As Chris Wallace noted, the 4,000 known or suspected terrorists were detained at airports. According to Trump's own State Department, "there was no credible evidence indicating that international terrorist groups have established bases in Mexico, worked with Mexican drug cartels, or sent operatives via Mexico into the United States."

McConnell's move

By declaring a national emergency to obtain blatantly political objectives, Trump would be testing the structures that make America a democracy and not an authoritarian regime. There is one man with the ability to stop him: Mitch McConnell.

McConnell says he opposes government shutdowns and promised they would end. "There will not be another government shutdown. You can count on that. Shutting down the government, in my view, is not conservative policy. I don’t think a two-week paid vacation for federal employees is conservative policy," McConnell said in October 2013.

The Senate already voted unanimously to fund the government without border wall funding. It would likely do so again by overwhelming margins. McConnell can end the shutdown and avoid a Constitutional crisis.

Thus far, he's decided to do nothing.

What's next

It's hard to imagine the "national emergency" gambit resulting in a border wall. But it's possible that Trump does not care. Issuing such a declaration would give Trump an excuse to end the shutdown while underscoring to Trump's base that he is willing to do anything and everything to build the wall.


Tucker Carlson's war on women

At the end of 2018, Tucker Carlson lost dozens of advertisers after repeatedly arguing that immigrants make America "dirtier." In 2019, he has turned over a new leaf: he's now attacking women.

In a stunningly sexist monologue last week, Carlson bemoaned higher pay for women. According to Carlson, well-paid women were responsible for "out-of-wedlock births...drug and alcohol abuse" and the destruction of the family.

Here’s a big part of the answer: male wages declined. Manufacturing, a male-dominated industry, all but disappeared over the course of a generation. All that remained in many places were the schools and the hospitals, both traditional employers of women. In many places, women suddenly made more than men.

Now, before you applaud this as a victory for feminism, consider the effects. Study after study has shown that when men make less than women, women generally don’t want to marry them. Maybe they should want to marry them, but they don’t. Over big populations, this causes a drop in marriage, a spike in out-of-wedlock births, and all the familiar disasters that inevitably follow -- more drug and alcohol abuse, higher incarceration rates, fewer families formed in the next generation.

The next day, after receiving significant criticism, Carlson defended his remarks and brought on a guest, the Manhattan Institute's Heather Mac Donald, to bolster his point. Mac Donald argued that many women have "ax to grind, a chip on their shoulder, and they’re constantly looking for ways to feel offended, mostly by dredging up sexism from the past because it’s almost impossible to find today."

There are still a few national advertisers keeping Carlson's show afloat.

Consider the Lobster

One of Carlson's remaining national advertisers is Red Lobster.

The President of Red Lobster, Salli Setta, is a member of the executive committee of the Women's Foodservice Forum. The mission of the Women's Foodservice Forum is "galvanizing the Food Industry to LEAD THE WAY to becoming one of the first industries to close the gender gap." The organization's website features the following quote:

We are at a critical inflection point in our quest to achieve gender parity.  It is up to all of us to harness this momentum, move urgently forward and drive change.  Closing the gender gap in the food industry will make us more competitive and unlock our full potential!

But Red Lobster is using its advertising budget to support Carlson, who tells millions of people that gender equality is destroying America.

Other companies sticking with Carlson are Jenny Craig, which has a "98% female" workforce, and Bayer.


Thanks for reading!

Popular Information made waves in 2018, which I detailed here. But we are just getting started.

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