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Congress won't save the Constitution from Trump; it's up to the courts

Our view: Rarely has a legal defense of the U.S. Constitution been more clear-cut than the multi-state lawsuit challenging President Trump’s bogus border emergency

For anyone who might still be complaining that Maryland Attorney General Brian Frosh is too quick to sue the federal government, we offer yet another perfect example of why it can be necessary: The multi-state lawsuit Mr. Frosh has chosen to join challenging President Donald Trump’s authority to declare a national emergency at the southern border in order to build a wall that Congress has chosen not to fund, that the American people do not support and that diverts federal dollars from worthy military programs including — ironically enough — drug interdiction.

At this point, we should not have to point out how President Trump’s single-minded pursuit of a border wall and his disdain for the Constitution are not only a matter of personal and political interests overcoming reason and the rule of law, but clearly unsupported by facts. No, the nation isn’t facing a crisis at the border, as illegal crossings and apprehensions are down around 1970s levels and far below those of 1980s, 1990s and 2000s. And no, a wall isn’t effective at screening out illegal drugs or criminal gang members. This is not an entryway for terrorism. And, if there’s a “crisis” at all, it’s the Trump administration’s failure to deal humanely with asylum seekers including families with young children who are neither criminal gang members nor even “illegal.” That’s why Mr. Frosh isn’t alone among Maryland’s leaders in saying the declaration needs to be challenged; Gov. Larry Hogan does too.

President Trump has even admitted that his invocation of “crisis” status under federal law is simply to thwart the will of Congress and transfer money to his pet project at a more rapid pace. Members of Congress should be outraged by this abuse of power, and while some are, it’s clear that too many Senate Republicans are willing to sell their souls and side with Mr. Trump, right or wrong, to expect the legislative branch to ultimately fulfill its mission as a check on this president’s authority. That leaves the federal judiciary, and perhaps eventually the Supreme Court, as the best hope for the nation.

Even setting aside concern over treatment of immigrants or any disdain for the corrosive racism and xenophobia Mr. Trump has exhibited over and over again in this matter, the legal challenge was an easy call because a president cannot do such a flagrant end-run around the U.S. Constitution and its separation of powers. If a president can manufacture an emergency and then overrule Congress on its most basic authority — to appropriate funds — then the United States is not a constitutional republic where the ultimate authority is held by people and their duly elected representatives, it’s a presidency with a vestigial congressional branch, an appendix once used but now largely bypassed.

The National Emergencies Act was not a rewrite of the Constitution, and given that Congress just decided on a suitable level of funding for border security, President Trump’s choice to bypass that decision amounts to a political coup. And given that Mr. Trump regards any conversation in which the words, “25th Amendment,” have been invoked as some kind of treason (“The biggest abuse of power and corruption scandal in our history,” Mr. Trump tweeted to describe a meeting in which the acting FBI Director Andrew McCabe allegedly discussed polling cabinet members for their views on Mr. Trump’s fitness for duty), that might not be an exaggeration.

This is not the first time the Trump administration has practically cried out for an independent judiciary to set limits on its reckless courses of action, but it might be the most flagrant example. The genius of the Constitution is that the third branch now has an opportunity to perform that vital function. Marylanders should be proud that their own attorney general jumped into action and joined California and other states challenging Mr. Trump’s bogus emergency. If protecting the Constitution isn’t crucial to Marylanders’ interests, we don’t know what is.

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