Trump's emergency declaration is unconstitutional – ask his lawyers

A shutdown averted, a constitutional crisis born. On Friday, Donald Trump declared a national emergency to gain additional funds for his much promised border wall, bypassing Congress and raiding the Pentagon for $3.6bn, already a legally dubious proposition in the eyes of the justice department. So much for Mexico paying.

Once upon a time, Trump and his legal minions brayed against unilateral executive actions, calling them tyrannical. Not any more. Barack Obama is out of the White House. Hail Caesar, hello his praetorian.

Take Jay Sekulow, Trump’s personal lawyer. In April 2016, in a brief to the supreme court attacking Obama’s unilateral expansion of the Deferred Action for Childhood Arrivals (Daca) program, Sekulow painted Obama as a despot.

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”. He also compared Obama and his executive order to Harry Truman’s unconstitutional seizure of America’s steel mills during the Korean war.

According to Sekulow, Truman “violated controlling precedent and abdicated [his] constitutional duty to faithfully execute the law”.

In other words, by expanding Daca without a congressional green light, Obama had committed an impeachable offense.

There is also Noel Francisco, now Trump’s solicitor general, the man charged with representing the government before the supreme court. In the Obama years, as a private litigator, he successfully contended that the president could not thwart the Senate’s power to approve presidential nominations by resorting to the “recess appointment” process when Congress was actually in session.

“As much as presidents may desire an escape-hatch from Senate confirmation, the constitution does not provide one”, Francisco wrote. Channeling his inner Cicero, he added that the separation of powers between the president and Congress “protects against the abuse of power” that “is critical to preserving liberty”.

Completing this tableau, Sekulow and his client, then House speaker John Boehner, sided with Francisco. As for Senator Mitch McConnell and 44 of his Republican colleagues, they accused Obama of seeking to “usurp” their powers.

Apparently, McConnell has since found the 30 pieces of silver that were just right for him. On Thursday, the Senate majority leader threw his weight behind the president, announcing on the floor: “I’m going to support the national emergency declaration.”

Earlier this month, McConnell voiced his opposition to Trump invoking emergency powers. Time flies.

Make no mistake, Republican politicians have embraced Trump as strongman-lite. In a 2016 radio broadcast Paul LePage, then governor of Maine, treated Trump’s authoritarian streak as a plus. “Our constitution is not only broken,” LePage declared, “but we need a Donald Trump to show some authoritarian power in our country.”

Disturbing but not surprising. From the outset, Trump’s core backers wanted a wall and a socially conservative president who felt no need to play by the rules. Except for the second amendment, everything was on the table.

Tea Party patriots decked out in tricorn hats and waving copies of the constitution – over and done with. In the words of Joe Sitt, an early Trump backer and a major player in New York real estate: “We don’t have a president, we have a king.”

Other Trump backers are less muted. Franklin Graham, the late Rev Billy Graham’s son, threatened Americans with God’s wrath if they had the temerity to criticize the president. Sarah Sanders, the president’s press secretary, gushed: “God wanted Donald Trump to become president.” That begs so many questions.

Predictably, too, there is a Trump tweet. In 2014, when Obama was going rogue on the constitution and immigration, Trump tweeted: “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.” Yes, Trump got that one right.

He also told his favourite TV show, Fox & Friends, that Obama’s action was unconstitutional and impeachable.

Like McConnell, Kevin McCarthy, the house minority leader, Mark Meadows, head of the Freedom Caucus, and Senator Lindsey Graham have fallen into line. Other Republicans, however, are less sanguine about Trump running roughshod over the constitution and Congress’ power over the purse.

Senator Marco Rubio found his inner straddle, saying: “We have a crisis at our southern border, but no crisis justifies violating the constitution … a future president may use this exact same tactic to impose the Green New Deal.”

In a burst of predictable handwringing, Senator Susan Collins characterized Trump’s emergency declaration as being of “dubious constitutionality. It undermines the role of Congress.”

Trump and his lawyers should expect to see their own words thrown back at them. As the president himself acknowledged on Friday: “I didn’t need to do this, but I’d rather do it much faster.”

Some emergency.