Originally posted in the Washington Post on February 15, 2019
By Meagan Flynn
In the days after President Barack Obama unveiled his plans to use executive power to unilaterally change immigration policy, “Fox & Friends” consulted Donald J. Trump for his opinion. The hosts asked, What should the Republicans do about it? Should Obama be impeached?
It was November 2014, a month that Trump spent lambasting Obama almost every day on Twitter. Trump was an outspoken critic of Obama’s immigration executive orders, which sought to shield millions of undocumented immigrants from deportation while providing them work permits. And on Fox News, speaking over the phone in a fast-talking, freewheeling monologue, Trump made clear what he thought of a president’s authority to bypass Congress on immigration policy: that it was illegal and, yes, impeachable.
Trump said that Obama couldn’t make a deal — and so “now he has to use executive action, and this is a very, very dangerous thing that should be overridden easily by the Supreme Court.” He added: “We’re looking now at a situation that should absolutely not pass muster in terms of constitutionality” and argued that Obama “certainly could be impeached” for it.
The Fox segment, first reported by CNN’s KFile late Thursday, was just one example of a number of old statements critics have unearthed to criticize President Trump’s planned national emergency declaration intended to secure border wall funding — bypassing Congress just as Obama did. Declaring a national emergency would be more extraordinary than Obama’s executive actions, but critics say the end result is the same: defying the consent of the governed by circumventing the legislative process.
Some have contended the act would amount to an abuse of executive authority, just so Trump can follow through on a personal campaign pledge in the absence of a deal with Congress. In 2014, however, Trump apparently thought the same of Obama.
“Repubs must not allow Pres Obama to subvert the Constitution of the US for his own benefit & because he is unable to negotiate w/ Congress,” Trump tweeted on Nov. 20, 2014, the day Obama announced plans for his executive immigration actions: Deferred Action for Parents of Americans (DAPA) and an expansion of the existing Deferred Action for Childhood Arrivals (DACA).
White House spokespeople did not immediately respond to a request for comment late Thursday regarding Trump’s 2014 remarks.
Trump is expected to declare a national emergency Friday as he signs a spending bill to avert another government shutdown, one that includes $1.375 billion for about 55 miles of border fencing. It was a deal Trump reportedly found wholly inadequate compared to his requested $5.7 billion, spurring his decision to use the emergency declaration as a funding tool.
On Thursday, both liberals and conservatives urged Trump not to follow through, in part by using his own 2014 words against him, observing the Trump-era adage, “there’s always a tweet.” Plenty of people on Twitter described his past comments as “hypocrisy.”
“Another reason the President should not use an emergency declaration,” conservative writer Erick Erickson tweeted, linking to Trump’s 2014 statement about Obama’s subversion of the Constitution.
Your words, not ours,” wrote Rep. Katherine M. Clark (D-Mass.).
“Trump has done a lot to undo Obama’s executive abuses,” tweeted David Harsanyi, an editor at the Federalist. “He should heed his own advice.”
Other critics gave Vice President Pence the same treatment Thursday, as a video of his 2014 remarks condemning Obama’s immigration executive actions circulated on Twitter.
Bill Kristol, the founder of the now-defunct Weekly Standard, shared C-SPAN footage of the vice president’s appearance at a 2014 Republican Governors Association event, where Pence, then the governor of Indiana, said that Obama’s immigration executive actions would be “a profound mistake.” Instead of enacting his own policies with the “stroke of a pen,” Pence urged Obama to sit down with Congress to hammer out a deal — the way real leadership is done, he said.
“When I talk about the consent of the governed, that is where the American people work their will,” Pence said. “If the president were to go through with this, he is acting outside the consent of the governed and is not providing leadership to solve this issue facing our country in the way the American people would expect a leader to do.”
He added: “Signing an executive order, giving a speech and barnstorming around the country is not leadership.”
“It would be great if VP Pence would share this clip with his boss,” tweeted Rep. Dwight Evans (D-Pa.).
A spokesman for Pence did not immediately return a request for comment regarding his 2014 remarks.
When Pence addressed Trump’s plans to possibly declare a national emergency last month, he acknowledged that the declaration would likely be challenged in courts and that the administration would have to defend it. But he stopped short of supporting the move, expressing preference for negotiations with Congress. “There’s no reason in the world why we shouldn’t be able to solve this through the regular legislative process,” he said.
On Thursday, Republicans painted the budget deal as a victory, but many also spoke out against Trump’s plans to declare a national emergency — in keeping with their criticism of Obama’s use of executive authority.
Republican senators including Marco Rubio (Fla.), Susan Collins (Maine), Rand Paul (Ky.), Ron Johnson (Wis.), Patrick J. Toomey (Pa.) and Lisa Murkowski (Alaska) were among those to oppose the national emergency for various reasons. Some said it amounted to an abuse of executive power, while others noted that typically Congress must appropriate funds before projects such as a border wall can begin.
Along with Democrats, they also worried that Trump’s declaration of a national emergency would set a precedent for future presidents, allowing them to simply “manufacture” an emergency whenever campaign pledges aren’t panning out in Congress. As The Washington Post reported Thursday, numerous lawsuits are expected to ensue.
“We have a crisis at our southern border, but no crisis justifies violating the Constitution,” Rubio said in a statement. “Today’s national emergency is border security. But a future president may use this exact same tactic to impose the Green New Deal.”
“I don’t think this is a matter that should be declared a national emergency,” Murkowski said. “We as legislators are trying to address the president’s priority. What we’re voting on now is perhaps an imperfect solution, but it’s one we could get consensus on.”
Collins said declaring a national emergency would be a “mistake.”
“Such a declaration would undermine the role of Congress and the appropriations process; it’s just not good policy,” she said in a statement. “It also sets a bad precedent for future Presidents — both Democratic and Republican — who might seek to use this same maneuver to circumvent Congress to advance their policy goals. It is also of dubious constitutionality, and it will almost certainly be challenged in the courts.”
Obama’s executive actions that Trump, Pence and many Republicans opposed each faced their own legal challenges. The U.S. Court of Appeals for the 5th Circuit blocked DAPA on the grounds that Obama’s executive order sidestepped important rulemaking processes contained in the Administrative Procedure Act, a ruling that was upheld by the Supreme Court in 2016. DACA, on the other hand, is still entangled in congressional negotiations, its fate still uncertain. It was not a part of the budget deal passed Thursday.