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This past Friday, Senator Chuck Schumer (N.Y.) and several other Democratic senators voted to advance a Republican spending bill to keep the government funded. By doing so, they effectively legitimized the unlawful actions that President Donald Trump and his cronies are taking to reshape the federal government.
To justify his vote, Senator Schumer went on the Senate floor and argued that a government shutdown would give President Trump more power to unilaterally reshape the government. But that's like arguing that if a bull ran into your china shop, you should leave him there because it would cause more damage to force him out. Either way, the bull is breaking things. The only way to ensure your entire business is not destroyed is to have the courage to get in front of it and force it out once and for all.
Instead of offering any level of resistance, the Democrats caved and gave President Trump and the Republican Caucus exactly what they wanted without even a single concession. That was a serious mistake. What the Democrats should have done is unanimously vote down the spending bill, and shut down the government. Every one of them, from both houses, then should have gathered on the steps of the Capitol Building and in one voice, say why: "This isn't about President Trump's policies, or subverting the will of the voters who elected him. It is about standing up to the unbroken series of unlawful actions that President Trump has taken. He can change policies and he can critique, analyze, and adjust every aspect of the government, but he must do so while following the law."
Federal judges, appointed by both parties, have issued dozens of orders enjoining various actions the Trump administration has taken. Just this past Friday, the Trump administration went so far as to directly defy a federal judge's order to stop a plane full of migrants headed for El Salvador. The administration's response? "Oopsie...Too late."
The administration repeatedly cites presidential emergency powers to justify its extralegal behavior. One recently invoked authority, the 1798 Alien Enemies Act, was last used to justify the internment of 120,000 Japanese in World War II, approximately 80,000 of whom were U.S. citizens. A clear prerequisite for invoking this power is for the U.S. to be at war. Despite the fact that we are not at war with anyone right now, the Trump administration invoked it anyway.
The Trump administration's actions pose a serious and ongoing threat to our constitutional system of separation of powers. They also put the United States on a slippery slope toward despotism—not because President Trump's policies are necessarily wrong or even bad, but because of the illegal means used to enact them. The Trump administration may argue that the ends justify the means. But in a constitutional republic the means are just as important as the ends, if not more so. For the rule of law to have meaning, all citizens of that republic must follow it—that includes, most importantly, its elected leader who, as a condition of taking office, swore an oath "to preserve, protect and defend" its constitution.
That's exactly what the Democrats should have said. They should have started by acknowledging what President Trump can lawfully do, even when those actions instituted measures with which the Democrats disagreed, even vehemently. But in the next breath, the Democrats should have vowed to stand up to any and all unlawful actions he and his enablers take. They should have said that they will keep this government shut down until President Trump—like everyone else—follows the rule of law. They could have stood together, and for the first time since President Trump took office, presented a unified, coherent message to the American public outlining why President Trump's actions are wrong. But the Democrats did none of those things. Instead, Schumer meekly voted "yes" to the spending bill, effectively legitimizing what the Trump administration has done, leaving the Democrats once again in disarray with no coherent message.
In the aftermath of their crippling election defeat in November, the Democrats must regroup, rethink their message, and begin to strategically and forcefully demonstrate to the American people that even President Trump's actions have limits and repercussions. They could have done so last week. They could have shown the American people their backbone; instead, the Democrats projected weakness, unable to coalesce around each other, much less a coherent message. It was a huge opportunity lost.
Harrison Murphy is a student at Duke Law School and Editor for the Duke Law Journal.
The views expressed in this article are the writer's own.
