. I think Goldsmith's view is too sanguine and that he gives too little attention to Trump repurposing Congressional appropriations. But even Goldsmith thinks that what Trump's doing is corrosive and wrong:
Trump is not by a mile the first president to invoke executive power aggressively for political purposes. But he might be the first plausibly to be seen to exercise emergency powers openly for political purposes. In this regard, as in many regards, Trump is undisciplined in his lack of hypocrisy.
. . . This is a counterintuitive idea. Many people see Trump as hypocritical since he often says one thing and does another (including things that he criticized his predecessor for). But he is profoundly not hypocritical in this sense: As in his border wall announcement, he is often guileless in asserting power, and doesn't try to hide the tension between his political aims and his asserted constitutional justifications. This is one of Trump’s most remarkable and persistent norm violations. “The clearest evidence of the stability of our values over time is the unchanging character of the lies … statesmen tell,” Michael Walzer
famously noted. “They lie in order to justify themselves, and so they describe for us the lineaments of justice. Wherever we find hypocrisy we find moral justice.” Walzer might have added that when we see in our statesmen an absence of hypocrisy in a contested context where principle normally matters, an absence of moral justice creeps in.
Trump’s lack of hypocrisy in the current context is harmful for at least two reasons.
First, it will hurt him in court. His acknowledgement that his emergency is not “real,” and his openly political motivations, will make it harder for judges—and especially the Supreme Court justices whom he said during the press conference he hopes would rule his way—to uphold his order. This is so in part for doctrinal reasons: The president’s integrity and truthfulness, and the possibility that he is acting pretextually based on an illicit motive, will be front and center in this litigation. And it is so in part for what might be called political or atmospheric reasons. Courts don’t like to be seen as pawns asked to indulge obvious fictions in the exercise of executive power in controversial contexts. But that is the situation the courts are now in.
. . . The second reason Trump’s actions are harmful is that the broader legitimacy of the presidency that wields such vast powers over so many lives depends on presidents who present and exercise those powers with at least a modicum of decorum, modesty and attention to rule-of-law values. As I have argued in
two books, one of the great mistakes of the George W. Bush presidency was the tendency to act on the basis of an open desire to expand presidential powers—something most of the main players, including President Bush, later
regretted. Trump’s performances make the performances of the Article II chest-thumpers in the Bush administration seem restrained by comparison. To be clear, the Bush team invoked Article II powers in substance
much more aggressively than Trump. But their public rhetoric, while damaging to the presidency, was not, I think, as damaging as the impact of Trump’s openly politically self-regarding rhetoric. This is a hard thing to prove or even know for sure. But it is not necessary to decide whether the Bush or Trump rhetorical strategy was worse to know that Trump’s corrodes the presidency.
Trump’s utter lack of hypocrisy in the aggressive exercise of presidential power is a clarifying moment for the nation. His inability to withhold his private motivations, combined with his willingness to push the presidential envelope in controversial ways, combined with his unsteady grasp of his office and worrisome judgment in wielding his massive powers, has shined the brightest of lights on how much power Congress has given away, and how much extraordinary power and discretion presidents have amassed. After Trump, and due to him, there will be a serious reckoning with this constitutional arrangement like no time since the 1970s, and possibly ever in American history. Whether the Congress and the nation can do anything about it is another matter. I have my doubts.
