Trump’s own lawyers think the president’s ‘national emergency’ is unconstitutional — and impeachable
Prior to Donald Trump taking office, his lawyers railed against unconstitutional presidential overreach that bypasses Congress — but they appear to have changed their tune with a change in the Oval Office’s occupant.
New York attorney Lloyd Green noted in a column for The Guardian that as recently as 2016, Trump attorney Jay Sekulow filed a Supreme Court brief challenging President Barack Obama’s unilateral decision to expand the Deferred Action for Childhood Arrivals program.
“Echoing James Madison, founding father and fourth president, Sekulow thundered that the ‘accumulation of all powers, legislative, executive and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.'” Green wrote. “He also compared Obama and his executive order to Harry Truman’s unconstitutional seizure of America’s steel mills during the Korean war.”
Sekulow suggested in the brief that Obama had committed an impeachable offense when he compared him to Truman, who, according to the lawyer, “violated controlling precedent and abdicated [his] constitutional duty to faithfully execute the law.”
Noel Francisco, who is now Trump’s solicitor general, also pushed back against Obama during the previous administration, successfully arguing presidents “could not thwart the Senate’s power to approve presidential nominations by resorting to the ‘recess appointment’ process when Congress was actually in session,” the attorney wrote.
“As much as presidents may desire an escape-hatch from Senate confirmation,” Francisco wrote during the Obama administration, “the constitution does not provide one.”
Sekulow and his then-client John Boehner agreed with Francisco — as did Senate Majority Leader Mitch McConnell (R-KY) and 44 of his Senate GOP colleagues. As Green noted, the Republican senators accused Obama of trying to “usurp” their authority.
“Trump and his lawyers should expect to see their own words thrown back at them,” Green wrote. “As the president himself acknowledged on Friday: ‘I didn’t need to do this, but I’d rather do it much faster.’“